Skip to main content

Full text of "Indiana Law Review"

See other formats


Indiana Law 
Review 



SYMPOSIUM 

Introduction: A Symposium on the Law of Democracy 
Michael J. Pitts 

Keynote Address: What Election Law Has to Say to Constitutional Law 

Heather K. Gerken 

The Founders' Bush v. Gore: The 1792 Election Dispute and Its Continuing Relevance 

Edward B. Foley 

"Celebrating" the Tenth Anniversary of the 2000 Election Controversy: What the World Can Learn 
from the Recent History of Election Dysfunction in the United States 

Nathaniel Persily 

Public Rights and Private Rights of Action: The Enforcement of Federal Election Laws 

Daniel P. Tokaji 

Language Assistance and Local Voting Rights Law 
Angelo N. Ancheta 

Reinventing Voting Rights Preclearance 
Kareem U. Crayton 

After Citizens United 
Michael S. Kang 

Disclosures About Disclosure 
Lloyd Hitoshi Mayer 

What Changes Do Recent Supreme Court Decisions Require for Federal Campaign Finance 

Statutes and Regulations? 
Allison R. Hay ward 

NOTE 

Sexting: A Response to Prosecuting Those Growing Up with a Growing Trend 

Jordan J. Szymialis 



* 



INDIANA UNIVERSITY 



SCHOOL OF LAW-INDIANAPOLIS 

IUPUI 



Volume 44 No. 1 2010 




BNA's Law School Program 



Multiple platforms, more choices 
— for staff and students. 

Delivery of timely information is one of the cornerstones 
of BNA's success. Now, BNA delivers services 
electronically, through IP authentication, to all law 
school faculty staff and their students. 

By subscribing to any of four law school-wide electronic 
packages or building your own custom package, you 
can give your students access to the same valuable 
information as practicing attorneys. They'll conduct 
research and follow changes in the law in the same 
way senior partners do. Your students will not only be 
prepared for internships and clerkships, they'll be better 
equipped for any job. 

To learn more about BNA's law school program, call 
BNA Customer Service at 800-572-3374 or visit us at 
www.bna.com/lawschool. 




Essential information. Expert analysis. 



Indiana Law Review 



Volume 44 



2010-2011 



Editor-in-Chief 

Kate Mercer-Lawson 



Executive Managing Editor 

Sara M. Benson 

Senior Executive Editor 

Jennifer Ekblaw 

Symposium Editor 
Amanda L.B. Mulroony 

Articles Editors 

Lauren Berger 

Zachary G. Jacob 

Jared W. Josleyn 

Jordan Szymialis 

Perry Whan 



Executive Notes Editor 

Sarah Orme 

Executive Articles Editors 

Charles B. Daugherty 
Mac Schilling 



Note Development Editors 

Courtney L. Andreone 

Thomas Landrigan 

Kyle D. McClammer 

Timothy J. Moriarty 

Justin Spack 

David T. Vlink 



Associate Editors 

Jonathan T. Faust 
Brian K. Jarman 



Ted Batson, Jr. 

Kory Bell 

Courtney Benson-Kooy 

Sean Brown 

Amanda Dalton 

Matthew Dinn 

Erica Drew 

Nick Dugan 

Ian Fleming 



Members 

Sarah Fowler 

Matthew Gaudin 

Molly Gilland 

Jared Haller 

John Higgins 

Janelle Kilies 

Lisa Laws Kohli 

Lara Langeneckert 

Michael Mullins 

Keith Mundrick 



Meghan Pitcher 

Sean Roth 
Kirk Severson 
James Smerbeck 
Brian Tekulve 
Alicia Wanker 
Maritza Webb 
Alex Whitted 
Beau Zoeller 



Editorial Specialist 

Chris Paynter 

Faculty Advisors 

Andrew R. Klein 
R. George Wright 



Indiana Law Review 

(ISSN 0090-4198) 

Published four times a year by Indiana University. Editorial and Business Offices are located at: 

Indiana Law Review 

Lawrence W. Inlow Hall 

530 W. New York Street 

Indianapolis, IN 46202-3225 

(317)274-4440 

Subscriptions. Current subscription rates for an academic year are $30.00 (domestic mailing) and 
$35.00 (foreign mailing) for four issues. Unless the Business Office receives notice to the contrary, 
all subscriptions will be renewed automatically. Address changes must be received at least one 
month prior to publication to ensure prompt delivery and m ust include old and new address and 
the proper zip code. 

Single and Back Issues. Current single regular issues may be obtained from the Indiana Law 
Review Business Office for $10.00. Current Survey issues may be purchased for $20.00. The 
Symposium Issue may be purchased for $15.00. Please enclose payment with order. Claims for 
nonreceipt of current year's issues must be made within six months of the mailing date. Back issues 
may be ordered from: William S. Hein & Co., Inc., 1285 Main St., Buffalo, NY 14209-1987, 
(800) 828-7571, (716) 883-8100 fax, mail@wshein.com (e-mail for orders). Back issues are also 
available in an image-based format through HeinOnline, www.heinonline.org and Ebsco 
Publishing, www.ebscohost.com. 

Manuscripts. The Indiana Law Review invites submission of unsolicited manuscripts. All 
citations should conform to The Bluebook A Uniform System of Citation (19th ed. 2010). 
Manuscripts should be double-spaced with standard one-inch margins. The Indiana Law Review, 
as a matter of policy, promotes the use of gender-neutral language, and alternate use of the female 
or male pronoun is intended to refer to both female and male. 

Copyright: Copyright 2010. The Trustees of Indiana University. Except as may be expressly 
provided elsewhere in this publication, permission is hereby granted to produce and distribute 
copies of individual works from this publication for nonprofit education purposes, provided that 
copies are distributed at or below cost, and that the author, source, and copyright notice are 
included on each copy. This permission is in addition to rights of reproduction granted under 
Sections 107, 108, and other provisions of the U.S. Copyright Act. 

The INDIANA LAW REVIEW (ISSN 0090-4198) is the property of Indiana University and 
is published quarterly by the Indiana University School of Law — Indianapolis, which assumes 
complete editorial responsibility thereof. Current subscription rates for an academic year are: one 
year domestic $30.00; foreign $35.00. Send all correspondence to Editorial Specialist, Indiana Law 
Review, Indiana University School of Law — Indianapolis, Lawrence W. Inlow Hall, 530 W. New 
York Street, Indianapolis, Indiana 46202-3225. Publication office: 530 W. New York Street, 
Indianapolis, Indiana 46202-3225. Periodicals postage paid at Indianapolis, Indiana 46201 . 

POSTMASTER: Send address changes to INDIANA LAW REVIEW, Lawrence W. Inlow 
Hall, 530 W. New York Street, Indianapolis, Indiana 46202-3225. 







The entire text of this Law Review is printed on recycled paper. 




'• fc?'? 



ft,.^«W^.. ,;,,;:. ; ;; : VV;.; t 






Name 
Address 



Please enter my subscription 

to the 

INDIANA LAW REVIEW 



Enclosed is $_ 



for 



subscription(s) 



Mail to: ATTN: Editorial Specialist 

at 
INDIANA LAW REVIEW 

INDIANA UNIVERSITY SCHOOL OF LAW— INDIANAPOLIS 

Lawrence W. Inlow Hall 

530 West New York Street 

Indianapolis, Indiana 46202-3225 

For an academic year, the subscription rate for four issues is: 
Domestic, $30; Foreign, $35; Student, $20 

Single Issue, $10; Survey Issue $20 
Symposium Issue, $15 



Digitized by the Internet Archive 

in 2011 with funding from 

LYRASIS Members and Sloan Foundation 



http://www.archive.org/details/indianalawreview44110unse 



Indiana 

International & 
Comparative 
Law Review 



The Indiana International & Comparative Law Review, published by the Indiana 
University School of Law - Indianapolis since 1991, is a student-edited law journal that 
provides a forum for the discussion and analysis of contemporary issues in public and 
private international law. The Review publishes articles by prominent legal scholars, 
practitioners, and policy makers from around the world, as well as student-written notes 
and comments. 

The Review is published twice annually, with a periodic third issue devoted to a 
specific topic in international or comparative law. In 1994, in conjunction with the Italian 
Academy for Advanced Studies in America at Columbia University, the Review published 
a special issue on the political and social aspects of Italian law. In 1 996, the Review 
published an issue addressing various aspects of Chinese law. 



Name 



School/Firm/Business 



Address 



City, State, Zip Code 

Subscriptions within the U.S. are $18.00 per year and outside the U.S. are 

$21 .00 per year. I enclose $ for subscription(s) to the Indiana 

International & Comparative Law Review. Please make your check payable to Indiana 
International & Comparative Law Review. 

Mail to: Executive Production Editor 

Indiana International &. Comparative Law Review 
Lawrence W. Inlow Hall 
530 West New York Street 
Indianapolis, Indiana 46202 



In 2003, Indiana University School of Law - Indianapolis established a 
specialty law review focused specifically on health care law and policy: 




The scope of the Indiana Health Law Review includes bioethics, 
malpractice liability, managed care, anti-trust, health care organizations, 
medical-legal research, legal medicine, food and drug, and other current 

health-related topics. 

Detach and mail this subscription form today to receive 
future issues 

Subscription Price: $20.00 

■ Two (2) Issues 

■ Automatic Renewal 
■ Foreign Mailing Is Extra 

Mail form to: 

Indiana Health Law Review 

Indiana University School of Law - Indianapolis 

Attn: Executive Business Editor 

Lawrence W. Inlow Hall, Room 136C 

530 W. New York Street 

Indianapolis, IN 46202-3225 

Questions? 

Email: ihlr@iupui.edu 

Phone:(317)278-9519 

www.indylaw.indiana.edu/~ihlr 

Mailing Address: 

Name/Title 



Company/School 
Address 



City _ 

Email 



State ZIP 



Payment Method: D 



Enclosed 

(Make Check Payable to 

Indiana Health Law Review) 



□ Bill Me Later 



Indiana University School of Law — Indianapolis 
2010-2011 ADMINISTRATIVE OFFICERS AND FACULTY 

Administrative Officers 

Michael A. McRobbie, President of the University. Ph.D., Australian National University. 
CHARLES R. BANTZ, Chancellor, Indiana University-Purdue University — Indianapolis. B.A., 

M.A., University of Minnesota; Ph.D., The Ohio State University. 
GARY R. Roberts, Dean and Gerald L. Bepko Professor of Law. B.A., Bradley University; 

J.D., Stanford University. 
PaulN. Cox, Vice Dean and Centennial Professor of Law. B.S., Utah State University; J.D., 

University of Utah; LL.M., University of Virginia. 
JAMES P. Nehf, Associate Dean for Graduate Studies and Cleon H. Foust Fellow; Professor 

of Law and John S. Grimes Fellow. B.A., Knox College; J.D., University of North 

Carolina Law School. 
JONNA KANE MacDOUGALL, Assistant Dean for External Affairs and Alumni Relations. B.A., 

M.A., Indiana University; J.D., Indiana University School of Law — Indianapolis. 
JOHNNY Pryor, Assistant Dean for Student Affairs. B.A., Wittenberg University; J.D., Indiana 

University Maurer School of Law. 
CHASTITY THOMPSON, Assistant Dean for Professional Development. A.S., B.A., Alabama State 

University; M.B.A., Auburn University; J.D., Indiana University School of Law — 

Indianapolis. 
MARK V. WUNDER, Assistant Dean for Development. B.S., J.D., University of Iowa. 
ELIZABETH ALLINGTON, Director of Communications and Creative Services. B.A., Indiana 

University; M.A., M. Phil., New York University. 
TERESA (Terri) J. CUELLAR, Director of Technology Services. B.S., St. Bonaventure 

University, New York. 
JOYCE M. HERTKO, Director of Major Gifts. B.A., Knox College; M.S., Western Illinois 

University; Ph.D., Indiana University. 
AMANDA KAMMAN, Director of Fund Raising and Development Services. B.A., Indiana 

University. 
PRISCILLAD. Keith, Director of Research and Projects, Hall Center for Law and Health. B.S., 

Spelman College; M.S., Atlanta University; J.D., Indiana University School of Law — 

Indianapolis. 
Patricia K. Kinney, Director of Admissions. B.S., Purdue University; J.D., Indiana University 

School of Law — Indianapolis. 
VIRGINIA MARSCHAND, Director of Administrative and Fiscal Affairs. B.A., M.P.A., Indiana 

University; J.D., Indiana University School of Law — Indianapolis. 
SONJARlCE, Egypt Program Director. B.A, Purdue University; J.D., Indiana University School 

of Law — Indianapolis. 
JOHN R. SCHAIBLEY, III, Executive Director of The Center for Intellectual Property Law and 

Innovation. B.A., Purdue University; J.D., Indiana University Maurer School of Law. 
La WANDA W. WARD, Director of Pro Bono Program and Public Interest. B.A., Murray State 

University; M.A., Illinois State University; M.S., Old Dominion University; J.D., 

Indiana University School of Law — Indianapolis. 
JACOB Manaloor, Associate Director for Contracts, Grants and Fund Raising. B.S., Indiana 

University Kelley School of Business; J.D., Indiana University School of Law — 

Indianapolis. 
CARLOTA TOLEDO, Associate Director of Student Affairs. A.B., University of Chicago; J.D., 

DePaul University College of Law. 
SUSIE Agnew, Assistant Director of Student Services. Clark College. 
William J. BAKER, Assistant Director of Technology Services. 
SUSAN BUSHUE-RUSSELL, Assistant Director of Administration and Finance. A.A.S., Lakeland 

College; B.S., Eastern Illinois University. 
Karen H. MILLER, Assistant Director for Admissions. Midway College. 
LISA SCHRAGE, Assistant Director for Donor Relations. B.S., Marian College. 

Faculty 

Cynthia M. ADAMS, Clinical Professor of Law and Co-Director of the Latin American Law 
Program. B.A., Kentucky Wesleyan College; J.D., Indiana University School of 
Law — Indianapolis. 



JUDITH FORD ANSPACH, Professor of Law and Director, Ruth Lilly Law Library. B.S., M.L.S., 

Kent State University; J.D., Mississippi College School of Law. 
CynthiaBaker, Clinical Associate Professor of Law and Director, Program on Law and State 

Government. B.A., J.D., Valparaiso University. 
GERALD L. BEPKO, Indiana University-Purdue University — Indianapolis Chancellor Emeritus, 

Indiana University Trustee Professor and Professor of Law. B.S., Northern Illinois 

University; J.D., ITT/Chicago-Kent College of Law; LL.M., Yale Law School. 
Shawn Boyne, Associate Professor of Law and Dean's Fellow. B.A., Cornell University; 

M.B.A., University of Minnesota, J.D., University of Southern California's Gould 

School of Law, M.A., University of Wisconsin, L.L.M., Justus-Liebig-Universtat. 
Karen E. Bravo, Professor of Law; John S. Grimes Fellow and Dean 's Fellow. B.A., The 

University of the West Indies; J.D., Columbia University School of Law; LL.M., New 

York University School of Law. 
Robert Brookins, Professor of Law. B.S., University of South Florida; J.D., Ph.D., Cornell 

University. 
Kenneth D. Chester, Clinical Associate Professor of Law. B.A., Pennsylvania State 

University; J.D., University of Pittsburgh School of Law. 
DANIEL H. Cole, R. Bruce Townsend Professor of Law. A.B., Occidental College; A.M., 

University of Chicago; J.D., Lewis and Clark Law School; J.S.M., J.S.D., Stanford 

Law School. 
JEFFREY O. COOPER, Associate Professor of Law. A.B., Harvard University; J.D., University of 

Pennsylvania Law School. 
ERIC Dannenmaier, Associate Professor of Law and Dean 's Fellow. B.A., Drury College; 

J.D., Boston University; LL.M., Columbia University; M. St., Oxford University. 
James D. Dimitri, Clinical Professor of Law. B.S., Indiana University; J.D., Valparaiso 

University School of Law. 
JENNIFER A. Drobac, Professor of Law and Director, Central and Eastern European Law 

Summer Program. B.A., M.A., Stanford University; J.D., J.S.D., Stanford Law 

School. 
GEORGE E. EDWARDS, Carl M. Gray Professor of Law; Faculty Advisor to the LL.M. Track in 

International Human Rights Law (term ending, Spring 2011 ); Director, Program in 

International Human Rights Law and John S. Grimes Fellow. B.A., North Carolina 

State University; J.D., Harvard Law School. 
FRANK EMMERT, John S. Grimes Professor of Law and Executive Director, Center for 

International and Comparative Law. Erstes Juristisches Staatsexamen (J.D.), 

University of Munich Law School; LL.M., The University of Michigan Law School; 

Ph.D., University of Maastricht; Diploma, European University Institute. 
NICHOLAS GEORGAKOPOULOS^aro/^T?. Woodard Professor of Law. PtyhionNomikis, Athens 

University School of Law; LL.M., S.J.D., Harvard Law School. 
CARRIE HAGAN, Clinical Associate Professor of Law. B.A., University of Kansas; J.D., 

University of Cincinnati, College of Law. 
JOHN LAWRENCE Hill, Professor of Law; Adjunct Professor of Philosophy and John S. Grimes 

Fellow. B.A., Northern Illinois University; J.D., Ph.D., Georgetown University. 
LINDA Kelly Hill, M. Dale Palmer Professor of Law. B.A., J.D., University of Virginia. 
MAXHUFFMAN, Associate Professor of Law and Dean 's Fellow. B.A., Cornell University, J.D., 

University of Chicago College of Law. 
LAWRENCE A. JEGEN, III, Thomas F. Sheehan Professor of Tax Law and Policy. A.B., Beloit 

College; J.D., M.B.A., The University of Michigan; LL.M., New York University 

School of Law. 
ROBERT A. Katz, Professor of Law and John S. Grimes Fellow. A.B., Harvard College; J.D., 

University of Chicago Law School. 
Eleanor D. KINNEY, Hall Render Professor of Law, Co-Director of the William S. and 

Christine S. Hall Center for Law and Health. B.A., Duke University; M.A., 

University of Chicago; J.D., Duke University School of Law; M.P.H., University of 

North Carolina. 
ANDREW R. Klein, PaulE. Beam Professor of Law; Chief of Staff Office of the Chancellor of 

Indiana University-Purdue University — Indianapolis. B.A., University of Wisconsin; 

J.D., Emory University School of Law. 
Norman LEFSTEIN, Professor of Law and Dean Emeritus. LL.B., University of Illinois College 

of Law; LL.M., Georgetown University Law School. 
Maria Pabon Lopez, Professor of Law and Dean 's Fellow. B.A., Princeton University; J.D., 

University of Pennsylvania Law School. 



GERARD N. MAGLIOCCA, Professor of Law, Co-Director, Chinese Law Summer Program and 

John S. Grimes Fellow. B.A., Stanford University; J.D., Yale Law School. 
Allison Martin, Clinical Associate Professor of Law. B.S., J.D., University of Illinois. 
DEBORAH MCGREGOR, Clinical Professor of Law and Assistant Director of Legal Analysis, 

Research and Communication. B.A., University of Evansville; J.D., Georgetown 

University Law School. 
Susanah M. Mead, Professor of Law. B.A., Smith College; J.D., Indiana University School 

of Law — Indianapolis. 
Emily MORRIS, Associate Professor ofLaw and Dean 's Fellow. A.B., Harvard University, J.D., 

University of Michigan Law School. 
Novella Nedeff, Clinical Associate Professor of Law. B.A., J.D., Indiana University. 
David ORENTLICHER, Samuel R. Rosen Professor of Law and Co-Director of the William S. 

and Christine S. Hall Center for Law and Health. A.B., Brandeis University; J.D., 

M.D., Harvard College. 
Joanne Orr, Clinical Professor of Law. B.S., Indiana State University; J.D., California 

Western School of Law. 
ANTONY PAGE, Associate Professor of Law and Dean 's Fellow. B. Comm., McGill University; 

M.B.A., Simon Fraser University; J.D., Stanford Law School. 
MICHAEL J. PITTS, Associate Professor of Law; Dean 's Fellow and John S. Grimes Fellow. 

B.S.J., Northwestern University; J.D., Georgetown University Law Center. 
Peter A. Prescott, Associate Professor of Law. B.A., Augustana College; M.S., The 

University of Chicago; M.P.A., The University of Texas at Austin; J.D., The 

University of Houston Law Center. 
Fran Quigley, Visiting Professor of Law. B.A., Hanover College; M.A., Indiana University; 

J.D., Indiana University School of Law — Indianapolis. 
Florence Wagman Roisman, William F. Harvey Professor of Law. B.A., University of 

Connecticut; LL.B., Harvard Law School. 
JOAN M. Ruhtenberg, Professor of Law and Director of Legal Analysis, Research and 

Communication. B.A., Mississippi University for Women; J.D., Indiana University 

School of Law — Indianapolis. 
JoelM. Schumm, Clinical Professor of Law and Director, Judicial Externship Program. B.A., 

Ohio Wesleyan University; M.A., University of Cincinnati; J.D., Indiana University 

School of Law — Indianapolis. 
Carlton M. Waterhouse, Associate Professor of Law and Dean's Fellow. B.S., 

Pennsylvania State University; J.D., Howard University School of Law; MT.S., 

Emory University, Chandler School of Theology; Ph.D., Emory University. 
Frances Watson, Clinical Professor of Law. B.S., Ball State University; J.D., Indiana 

University School of Law — Indianapolis. 
Lloyd T. Wilson, Jr., Professor of Law and Co-Director, Chinese Law Summer Program. 

B.A., Wabash College; M.A., Duke University; J.D., Indiana University School of 

Law — Bloomington. 
MARY T. WOLF, Clinical Professor of Law and Director of Clinical Programs and Externs hips. 

B.A., Saint Xavier College; J.D., University of Iowa College of Law. 
R. George Wright, Lawrence A. Jegen III Professor of Law. A.B., University of Virginia; 

Ph.D., Indiana University; J.D., Indiana University School of Law — Indianapolis. 

Emeriti Faculty 

Thomas B. Allington, Professor of Law Emeritus. B.S., J.D., University of Nebraska; LL.M., 

New York University School of Law. 
Edward P. Archer, Professor of Law Emeritus. B.M.E., Renesselaer Polytechnic Institute; 

J.D., LL.M., Georgetown University Law School. 
JAMES F. BAILEY, III, Professor of Law Emeritus and Director of the Law Library Emeritus. 

A.B., J.D., M.A.L.S., The University of Michigan. 
Clyde Harrison CROCKETT, Professor of Law Emeritus. A.B., J.D., University of Texas; 

LL.M., University of London (The London School of Economics and Political 

Science). 
Debra A. Falender, Professor of Law Emerita. A.B., Mount Holyoke College; J.D., Indiana 

University School of Law — Indianapolis. 
David A. Funk, Professor of Law Emeritus. A.B., College of Wooster; J.D., Case Western 

Reserve University School of Law; M.A., The Ohio State University; LL.M., Case 

Western Reserve University; LL.M., Columbia Law School. 



Paul J. Galanti, Professor of Law Emeritus. A.B., Bowdoin College; J.D., University of 

Chicago Law School. 
Helen P. Garfield, Professor of Law Emerita. B.S.J., Northwestern University; J.D., 

University of Colorado School of Law. 
HAROLD GREENBERG, Professor of Law Emeritus. A.B., Temple University; J.D., University 

of Pennsylvania Law School. 
Jeffrey W. Grove, Professor of Law Emeritus. A.B., Juniata College; J.D., George 

Washington University Law School. 
WILLIAM F. HARVEY, Carl M. Gray Professor of Law & Advocacy Emeritus. A.B., University 

of Missouri; J.D., LL.M., Georgetown University Law School. 
W. William Hodes, Professor of Law Emeritus, A.B., Harvard College; J.D., Rutgers 

University School of Law — Newark. 
William Andrew Kerr, Professor of Law Emeritus. A.B., West University; B.S., Duke 

University; J.D., LL.M., Harvard Law School. 
William E. Marsh, Professor of Law Emeritus. B.S., J.D., University of Nebraska. 
RONALD W. POLSTON, Professor of Law Emeritus. B.S., Eastern Illinois University; LL.B., 

University of Illinois College of Law. 
KENNETH M. STROUD, Professor of Law Emeritus. A.B., J.D., Indiana University — 

Bloomington. 
JAMES W. TORKE, Carl M. Gray Professor of Law Emeritus. B.S., J.D., University of 

Wisconsin. 
JAMES PATRICK WHITE, Professor of Law Emeritus. A.B., University of Iowa; J.D., LL.M., 

George Washington University Law School. 
LAWRENCE P. Wilkins, William R. Neale Professor of Law Emeritus. B.A., The Ohio State 

University; J.D., Capitol University Law School; LL.M., University of Texas School 

of Law. 

Law Library Faculty 

JUDITH FORD ANSPACH, Professor of Law and Director, Ruth Lilly Law Library. B.S., M.L.S., 

Kent State University; J.D., Mississippi College School of Law. 
DEBRA DENSLAW, Reference Librarian. B.A., Franklin College; M.S., University of Illinois, 

Urbana-Champaign; J.D., Valparaiso School of Law. 
Richard Humphrey, Reference Librarian. A. A., Brewton-Parker Junior College; B.A., 

Georgia Southwestern College; M.L.S., University of Kentucky. 
WENDELL E. JOHNTING, Assistant Director for Technical Services. A.B., Taylor University; 

M.L.S., Indiana University. 
CATHERINE LEMMER, Head of Information Services. B.A., Lawrence University; J.D., 

University of Wisconsin; M.S., University of Illinois. 
CHRIS E. LONG, Cataloging Librarian. B.A., Indiana University; M.A., Indiana University; 

M.L.S., Indiana University. 
Steven R. Miller, Reference Librarian. B.S., Lebanon Valley College of Pennsylvania; M.A., 

Dominican University; M.S., Northwestern University; J.D., The John Marshall Law 

School. 
MAHNAZ K. MOSHFEGH, Serials/Acquisitions Librarian. B.A., National University of Iran; 

M.S., Tehran University; M.A., Ball State University; M.L.S., Ph.D., Indiana 

University. 
Miriam A. Murphy, Associate Director. B.A., Purdue University; J.D., M.L.S., Indiana 

University — Bloomington. 
KlYOSHlOTSV, Automated Services and Media Librarian. A.A., Parkland College; A.B., M.S., 

C.A.S., University of Illinois. 



Indiana Law Review 



Volume 44 2010 Number 1 

Copyright © 2010 by the Trustees of Indiana University 

TABLE OF CONTENTS 
SYMPOSIUM 

Introduction: A Symposium on the Law 

of Democracy MichaelJ. Pitts 1 

Keynote Address: What Election Law Has to Say 

to Constitutional Law Heather K. Gerken 1 

The Founders' Bush v. Gore: The 1792 Election Dispute 

and Its Continuing Relevance Edward B. Foley 23 

"Celebrating" the Tenth Anniversary of the 2000 Election 
Controversy: What the World Can Learn from the 
Recent History of Election Dysfunction in the 
United States Nathaniel Persily 85 

Public Rights and Private Rights of Action: The Enforcement 

of Federal Election Laws Daniel P. Tokaji 1 13 

Language Assistance and Local Voting Rights Law . . . Angelo N. Ancheta 161 

Reinventing Voting Rights Preclearance Kareem U. Cray ton 201 

After Citizens United Michael S. Kang 243 

Disclosures About Disclosure Lloyd Hitoshi Mayer 255 

What Changes Do Recent Supreme Court Decisions Require 
for Federal Campaign Finance Statutes 
and Regulations? Allison R. Hayward 285 

NOTE 

Sexting: A Response to Prosecuting Those Growing Up 

with a Growing Trend Jordan J. Szymialis 301 



Volume 44 Number 1 



Indiana Law Review 

Volume 44 2010 Number 1 



SYMPOSIUM 



Introduction: A Symposium on 
the Law of Democracy 



Michael J. Pitts* 

The first decade of the twenty- first century has come to a close, and it has 
certainly been an interesting one for the rapidly maturing field of election law. 
The new century commenced with what might be described as the "big bang" of 
election law — the drama of Bush v. Gore) Bush v. Gore looms large for at least 
a couple of reasons. First, the case put an exclamation point on the growth in the 
constitutionalization of election law. 2 Second, the events in Florida during the 
2000 election created what now amounts to a third recognized subfield of election 
law — election administration — to accompany the other already prominent 
sub fields of voting rights and campaign finance. 

Beyond Bush v. Gore, the first decade of the new century also brought a wave 
of judicial decisions and statutory shifts. Sticking with election administration 
for a moment, 2002 saw enactment of the Help America Vote Act (HAVA) 3 as 
a reaction to the events surrounding the hotly disputed 2000 election. The HAVA 
introduced the concepts of statewide voter registration databases and provisional 
ballots to the entire country while also taking aim at improving the mechanisms 
(i.e., machinery) that voters use to cast ballots. The HAVA, in turn, spawned new 
thinking about election administration by the states, with several adopting 
controversial provisions requiring registered voters to present government-issued 
photo identification as a condition of casting a countable ballot. 4 Indeed, Indiana 
was one of the states that passed such a law, and a subsequent equal protection 
challenge to Indiana's law ultimately worked its way to the United States 
Supreme Court in Crawford v. Marion County Election Board. 5 Moreover, the 
federal government's work in election administration was not limited to passage 
of the HAVA. In 2009, Congress passed the Military and Overseas Voter 
Empowerment Act (MOVE), 6 representing yet another landmark in the 



* Associate Professor, Dean's Fellow, Indiana University School of Law — Indianapolis. 

1. 531 U.S. 98(2000). 

2. See generally Richard H. Pildes, Foreword: The Constitutionalization of Democratic 
Politics, 118 Harv. L. Rev. 28, 55-83 (2004). 

3. Pub. L. No. 107-252, 116 Stat. 1666 (2002). 

4. Senate Enrolled Act No. 438, Pub. L. No. 109, 2005 Ind. Acts p.2005. 

5. 553 U.S. 181 (2008). 

6. Pub. L. No. 1 1 1-84, 123 Stat. 2190 (2009). 



INDIANA LAW REVIEW [Vol. 44: 1 



continuing effort to fully enfranchise military and overseas voters. 

The voting rights sphere was equally as active. As always, the Supreme 
Court issued a number of decisions interpreting the statutory framework found 
in the Voting Rights Act. At the beginning of the decade, the Court rendered 
opinions in Reno v. Bossier Parish School Board 1 and Georgia v. Ashcroff that 
limited the application of the Section 5 preclearance provision. Congress, 
however, legislatively reversed both of these judicial decisions in 2006 by 
amending Section 5 while also extending the preclearance provision for another 
twenty-five years. 9 That same year, the Court for the first time in two decades 
found a violation of the Section 2 "results" test in the context of Texas's wild 
post-2000 redistricting battles. 10 Yet by the end of the decade, the Court had 
returned to its more skeptical view of the Voting Rights Act. In Bartlett v. 
Strickland, 11 the Court limited the application of Section 2. And in Northwest 
Austin Municipal Utility District No. One v. Holder, 11 the Court interpreted 
Section 5 in a novel manner to expand the ability of local governments to escape 
the preclearance requirement while simultaneously using extensive dicta to call 
into question the constitutionality of Congress's 2006 extension of the 
preclearance regime. 

Like voting rights, the area of campaign finance also witnessed an extensive 
conversation between Congress and the Court about regulation and its 
constitutional limits. In 2002, Congress passed the Bipartisan Campaign Reform 
Act (BCRA) 13 as a means of limiting the influence of money in elections. At 
first, the Court was deferential to the new regulations, upholding several 
important provisions of the BCRA in McConnell v. Federal Election 
Commission}* But a shift in the Court that traded Chief Justice William 
Rehnquist and Justice Sandra Day O'Connor for Chief Justice John Roberts and 
Justice Samuel Alito resulted in what appears to be a major transformation of the 
Court's views on campaign finance regulation. In a series of decisions in the last 
half of the decade from FEC v. Wisconsin Right to Life, Inc. 15 to Davis v. FEC 16 
to Citizens United v. FEC, 11 the Court rolled back on its deferential posture and 
demonstrated a far greater willingness both to limit the scope of campaign finance 
regulations and to strike them down in their entirety. 



7. 528 U.S. 320 (2000). 

8. 539 U.S. 461(2003). 

9. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577 (codified in 
scattered sections of 42 U.S.C.). 

10. League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006). 

11. 129 S. Ct. 1231 (2009). 

12. 129S. Ct. 2504(2009). 

13. Pub. L. No. 107-155, 1 16 Stat. 81 (codified in scattered sections of 42 U.S.C.). 

14. 540 U.S. 93 (2003), overruled in part by Citizens United v. FEC, 130 S. Ct. 876 (2010). 

15. 551 U.S. 449 (2007). 

16. 128S. Ct. 2759(2008). 

17. 130S. Ct. 876(2010). 



2010] INTRODUCTION 



It was with many of these events in mind when thirteen law professors 
gathered on April 8 and 9, 2010, at Indiana University School of 
Law — Indianapolis to discuss the past, present, and future of the law of 
democracy. In front of a large audience (thus signifying the tremendous public 
interest in these issues), these prominent legal academics explained, critiqued, and 
advocated for change in the areas of election administration, voting rights, and 
campaign finance. The discussion that commenced on those days now continues 
in this volume with nine articles certain to inform future debate related to the law 
of democracy. What follows here, then, is a brief description of the contents of 
this volume. 

Even a decade later, the 2000 presidential election still lingers in the minds 
of many, and a couple of articles in this volume use that election as a launching 
point for discussion of where election administration needs to go. Edward Foley 
notes how that election and the decision in Bush v. Gore exposed a critical 
weakness in that the United States Constitution does not create an institution for 
resolving disputed elections. Professor Foley then sets out to answer the question 
of why the Founders did not provide for such an institution. His answer is that 
the Founders had no experience in resolving disputed elections for executive 
positions; after all, their primary experience with executive power had been a 
king. Moreover, when confronted with such a dispute during the New York 
gubernatorial election in 1792, the Founders were at a loss for answers about how 
to resolve the dispute. Professor Foley then digs deep into the history of that 
1792 election — focusing on the views of such luminaries as Hamilton, Jefferson, 
Madison, and Jay — for lessons that might help us today. 

Nathaniel Persily uses Bush v. Gore as a means of pointing out what the rest 
of the world might learn from our experience in terms of election administration. 
After recounting the litany of problems (e.g., voter registration and ballot design) 
during Florida 2000, Professor Persily identifies several election administration 
goals that reformers around the world should try to meet, including accurately 
capturing the preferences of those who cast ballots, widespread participation, and 
public confidence in the administration of elections. Professor Persily then, 
importantly, discusses the need to measure whether those values are being met. 

Daniel Tokaji tackles a different issue that has moved to the forefront 
following Bush v. Gore and passage of the HAVA: in what situations should 
there be a private right of action to sue for violations of federal election statutes? 
Professor Tokaji notes how in recent years the Supreme Court has curtailed 
private enforcement of federal statutes. While not necessarily quibbling with the 
Court's overall doctrinal shift, Professor Tokaji does take issue with the 
application of the doctrine in the context of federal election statutes. He argues 
that the Court needs to shift its doctrine and allow greater access for private 
litigants to the courts because of the vital role federal courts play in overseeing 
elections. 

Angelo Ancheta provides a bridge between election administration and voting 
rights. His piece focuses on the laws aimed at assisting voters who are members 
of language-minority groups in casting ballots by providing things like 
registration materials and ballots in languages other than English. At the federal 
level, these requirements are embodied in certain provisions of the Voting Rights 



INDIANA LAW REVIEW [Vol. 44: 1 



Act. Professor Ancheta, however, demonstrates the inadequacy of federal laws 
and, importantly, shifts the focus to state and local government activity designed 
to foster participation among language-minority voters. In doing so, he identifies 
several conditions under which state and local governments have adopted laws 
and procedures in the absence of an explicit federal mandate. Even more 
importantly, he shows how the goals of local laws aimed at ballot access for 
language-minority groups do not reflect a response to past discrimination but 
rather reflect a desire to foster civic participation. 

Kareem Crayton focuses on another integral provision of the Voting Rights 
Act: the preclearance requirement embodied in Section 5. That provision 
requires certain state and local governments to get preapproval for any change 
they wish to make to their election laws in order to prevent the implementation 
of changes that would discriminate against racial and ethnic minority voters. 
Taking a cue from recent academic and Supreme Court skepticism about the 
efficacy of Section 5 in the twenty-first century, Professor Crayton thinks that 
Section 5 needs to be reinvented in order to solve a number of the "pathologies" 
that have developed over the years as a result of the preclearance provision. In 
designing that reinvention, Professor Crayton thinks there would be great utility 
in looking for guidance from another reinvention effort — the Reinventing 
Government initiative undertaken by President William Jefferson Clinton's 
administration. In the end, what Professor Crayton suggests is an alternate 
framework that helps establish a set of metrics for determining when a 
jurisdiction has achieved the goals of the preclearance process. 

While developments in the last decade related to election administration and 
voting rights generated substantial discussion at the symposium, the event that 
may have loomed largest was the ground-breaking decision in Citizens United v. 
FEC. In that case, a majority of the Supreme Court held that corporations had the 
constitutional right to make independent expenditures in federal elections. Three 
of the authors in this volume focused on the ramifications that case will have for 
the future of campaign finance regulation. 

Michael Kang sees Citizens United as potentially being the most important 
campaign finance decision in decades due to the Court's narrowing of the 
government interest in campaign finance regulation. For many years the 
Rehnquist Court had been fairly deferential to campaign finance regulation, 
subtly expanding the government interest in enacting those regulations. In 
contrast, Professor Kang views Citizens United as a move to narrow the 
government interest to quid pro quo corruption as the sole grounds upon which 
campaign finance regulation may rest. Professor Kang then examines how this 
narrowing of the government interest may impact other areas of campaign finance 
regulation, including restrictions on "soft money." 

Lloyd Hitoshi Mayer provides insight into a less-noticed aspect of the 
Citizens United decision — the Court's 8-1 vote to uphold regulations requiring 
corporations to disclose their donors. Professor Mayer identifies the policy and 
constitutional debate over disclosure as a fight between those who support 
disclosure because it makes for a more informed electorate and those who oppose 
disclosure because it can chill speech by opening the door to retaliation against 
publicly-identified donors. Professor Mayer points out, however, that neither side 



2010] INTRODUCTION 



has a great deal of evidence to support its claims of the benefits or burdens of 
disclosure. In the absence of compelling evidence, Professor Mayer makes some 
suggestions for improving the disclosure scheme. 

Allison Hayward examines Citizens United but also focuses more broadly on 
the recent increased scrutiny the Supreme Court has given to campaign finance 
regulations in contexts apart from union and corporate spending. In essence, 
what Professor Hayward focuses on might be termed the "nuts-and-bolts" aspects 
of campaign finance regulations. What she sees is a need for existing campaign 
finance regulations to accommodate the recent jurisprudential shift in areas 
ranging from limits on spending by candidates, to limits on contributions to 
candidates, to limits on spending by foreign nationals. In the end, she calls on 
Congress to re-evaluate the campaign finance regulations to make them simpler, 
clearer, and less burdensome. 

The capstone of this volume, though, is Heather Gerken's call to arms for 
election law academics. Tears for Fears once sang, "Everybody wants to rule to 
world." 18 Professor Gerken has slightly more modest goals for the field of 
election law; she'd be pleased if election law ruled constitutional law. Put a bit 
less vividly, Professor Gerken thinks that some of the dynamic, structuralist, 
institutional thinking in which election law scholars engage should become a key 
part of the dialogue in other areas of constitutional law, such as equal protection 
and executive power. What her article and, indeed, the other articles in this 
volume demonstrate is that election law has matured in a way that might have 
been unimaginable prior to this decade. Professor Gerken is most certainly onto 
something when she says that the time has come for election law to export its 
contributions to other realms. 

Beyond the individual contributors to this volume mentioned above, 19 there 
are many people who deserve praise for bringing this symposium volume to 
fruition. First, the entire staff of the Indiana Law Review — the "troops on the 
ground" — engaged in an amazing effort to make the trains run on time both 
during the live event held in April 2010 and in editing this volume in the months 
that followed. Those troops, though, needed leadership. On this score, Ann 
Harris Smith and Daniel Pulliam did a superb job of seizing the reins for 
coordinating the live event during the 2009-2010 academic year before handing 
things off to Sara Benson and Kate Mercer-Lawson, who worked tirelessly during 
the summer and fall of 2010 to put the finishing touches on this written volume. 
In the end, this volume of articles is in many ways a tribute to their diligence. 



1 8. TEARS FOR FEARS, Everybody Wants to Rule the World, on SONGS FROM THE BIG CHAIR 
(Phonogram Records 1985). 

19. In addition, Professors Adam Cox, Gilda Daniels, Jim Greiner, and Franita Tolson 
graciously participated in the "live" portion of the symposium. 



Keynote Address: What Election Law Has 
to Say to Constitutional Law 



Heather K. Gerken 



Introduction 

This Address briefly reexamines the relationship between election law and 
constitutional law. For those unfamiliar with the history of this relationship, 
allow me to offer a tongue-in-cheek sketch. Election law is a young field. It was 
not formally declared its own field of study until 1999, 1 though its roots date 
back earlier. While there were a handful of scholars writing systematically about 
the subject before 1990, 2 the field came into its own during the early 1990s as a 
group of dynamic young scholars entered the field and made a name for 
themselves. 

In the early days, election law looked a bit like a faraway outpost of 
constitutional law. Constitutional law dominated our collective imagination, and 
many in the field dutifully translated the pristine mandates of equal protection 
and the First Amendment into the Wild West atmosphere that we call politics. 
Much was made of the relationship between the Supreme Court's affirmative 
action discourse and its racial gerrymandering decisions, or the Court's campaign 
finance decisions and the rest of the First Amendment. 

Eventually, election law scholars declared their independence from 
constitutional law in a bloodless revolution. Building on the early and prescient 
work of Rick Pildes and several others, 3 election law scholars — myself 



* J. Skelly Wright Professor of Law, Yale Law School. What follows is a lightly footnoted 
version of the keynote speech delivered at the symposium. I am grateful for the comments I 
received at the symposium and from Sam Issacharoff, Rick Pildes, and David Schleicher. Thanks 
to Arpit Garg and Ben Zimmer for excellent research assistance. 

1 . Symposium, Election Law as Its Own Field of Study, 32 LOY. L. A. L. REV. 1 095 ( 1 999); 
see also Richard L. Hasen, Election Law at Puberty: Optimism and Words of Caution, 32 LOY. 
L.A. L. Rev. 1095, 1095 (1999) ("no one can seriously question whether election law is a subject 
in its own right"). 

2. Dan Lowenstein was the leading example. For accounts of Lowenstein's early 
contributions, see Symposium, The Past, the Present, and the Future of Election Law: A 
Symposium Honoring the Works of Daniel Hays Lowenstein (Jan. 29, 2010), 
http://www.law.ucla.edu/home/Calendar/Detail. aspx?recordid=4398. 

3 . See, e.g. , C. Edwin Baker, Campaign Expenditures and Free Speech, 33 Harv. C.R.-C.L. 
L. Rev. 1,1-3 (1998); Richard Briffault, Issue Advocacy: Redrawing the Elections/Politics Line, 
11 TEX. L. Rev. 1751, 1754-55 (1999); Samuel Issacharoff, Polarized Voting and the Political 
Process: The Transformation of Voting Rights Jurisprudence, 90 MICH. L. REV. 1833, 1837 
(1992); Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 Cal. L. Rev. 1201, 
1202-04 (1996); Richard H. Pildes, Principled Limitations on Racial and Partisan Redistricting, 
106 YaleL.J. 2505, 2506-09 (1997) [hereinafter Pildes, Principled Limitations]; Frederick Schauer 
& Richard H. Pildes, Electoral Exceptionalism and the First Amendment, 11 TEX. L. REV. 1 803, 
1805-08 (1999); see also sources cited infra note 20 (collecting sources from the Shaw literature). 



8 INDIANA LAW REVIEW [Vol. 44:7 



included — insisted that there was something special about the regulation of 
politics that required a different type of jurisprudence. 4 Scholars insisted that 
constitutional mandates could not be witlessly applied across domains. As 
Pamela Karlan correctly predicted, election law was "leaving constitutional law' s 
empire." 5 Some of the intellectual work was done during the 1990s by election 
law scholars reacting to the Shaw cases. 6 Bush v. Gore 1 provided an additional 
push in that direction because the case attracted top constitutional law scholars 
to the newly developed field. The fact that the best constitutional law scholars 
in the country were suddenly writing within the field was a signal of the field's 
legitimacy and prestige. But, in a typical example of "boundary policing," 8 
scholars who had mastered election law's details sometimes thought that 
mainstream constitutional law scholars were missing what made election law 
distinctive. 

Our formal Declaration of Independence was Rick Pildes's 2004 Harvard 
Foreword. 9 Even as democratic politics have become "constitutionalized," 
declared Pildes, constitutional law simply lacked an appropriate framework for 
regulating politics. 10 He argued that "[constitutional lawyers are trained to think 
in terms of rights and equality" whereas "politics involves, at its core, ... the 
organization of power." 1 x He thus insisted that even though the Supreme Court's 
election law jurisprudence was anchored in the Constitution, it should leave 
behind "[understandings of rights or equality worked out in other domains of 
constitutional law" because they were simply a bad fit for the regulation of 
politics. 12 



4. See, e.g., Heather K. Gerken, Election Law Exceptionalism? A Bird's Eye View of the 
Symposium, 82 B.U. L. Rev. 737 (2002). Some scholars remain skeptical of the idea, however. 
See, e.g., Daniel A. Farber, Implementing Equality, 3 ELECTION L.J. 371, 381-83 (2004) (reviewing 
Richard L. Hasen, The Supreme Court and Election Law: Judging Equality from Baker 
V. CARRTOBUSHV. Gore (2003)); Nathaniel Persily, The Search for Comprehensive Descriptions 
and Prescriptions in Election Law, 35 CONN. L. Rev. 1509, 1515-17 (2003). 

5. Pamela S. Karlan, Constitutional Law, The Political Process, and the Bondage of 
Discipline, 32 Loy. L.A. L. Rev. 1 185, 1 187 (1999). Karlan was equally prescient, in my view, 
when she insisted that "[i]t would be unfortunate for everyone concerned if legal regulation of the 
political process were to hive off completely from constitutional law and the two bodies were to 
evolve separately to the point where there is little possibility of continued cross-fertilization." Id. 
at 1188. 

6. See infra notes 20-26 and accompanying text. 

7. 531 U.S. 98 (2000). 

8. I borrow the idea from Laura Kalman, Border Patrol: Reflections on the Turn to History 
in Legal Scholarship, 66 FORDHAM L. REV. 87, 87-88 (1997). 

9. Richard H. Pildes, Foreword: The Constitutionalization of Democratic Politics, 118 
Harv. L. Rev. 28 (2004) [hereinafter Pildes, Foreword]. 

10. Id. at 39. For an empirical account of the dramatic increase in election litigation, see 
Richard L. Hasen, Introduction: Developments in Election Law, 42 Loy. L.A. L. REV. 565 (2009). 

1 1 . Pildes, Foreword, supra note 9, at 40. 

12. Id. 



20 1 0] KEYNOTE ADDRESS 



The notion of election law's exceptionalism has by now become 
conventional wisdom among scholars in the field. We understand ourselves to 
be an independent intellectual terrain, not a mere constitutional law outpost. If 
scholars are divided between lumpers and splitters — those who see connections 
across subject areas and those who think contextual differences matter 
most — then we have written about the relationship between election law and 
constitutional law largely in the cadence of the splitter. 

I want to call for a bit more lumping. That is not because I disagree with the 
notion that mainstream constitutional theory translates unevenly into the field of 
politics. To the contrary, I firmly believe in election law's exceptionalism. But 
I think that portions of constitutional law are exceptional as well. Much of 
constitutional law, after all, involves "the organization of power." 13 There may 
be more opportunities for intellectual arbitrage than people have typically 
imagined. 

Put more bombastically, during the next stage of the field's development, I 
think we ought to have imperial aims. 14 Election law scholars should do more 
than declare our independence from constitutional law; we should colonize it. 
There are lessons to be drawn from election law, sensibilities that permeate the 
field that are not as prevalent elsewhere, a distinctive perspective that might help 
reframe conventional constitutional law debates. Election law scholars, for 
instance, tend to focus on groups and aggregation rather than on individuals and 
rights, which are the conventional topics of inquiry for most constitutional law 
scholars. 15 Both constitutional law and election law are concerned with the fate 
of the "discrete and insular minorities" of Carolene Products'^ Footnote Four. 16 
But election law scholars devote a good deal more attention than their 
constitutional law counterparts to the democracy-reinforcement prong of 
Carolene Products' 's famous footnote. And unlike their constitutional law 
counterparts, election law scholars spend a good deal of time thinking about the 
relationship between Footnote Four's two prongs — between democracy 
reinforcement and the fate of discrete and insular minorities. They have even 
imagined that political empowerment plays as important a role as judicially 
enforceable rights in promoting equality. Similarly, election law scholars tend 
to view governments through the lens of politics. They thus eschew the type of 
formal accounts of state actors we see in much of constitutional law. Instead, 
election law scholars imagine institutions as a collection of political actors, 
something that pushes them to look beyond institutional roles and to treat a 



13. Id. 

14. I hope readers will forgive the territorial analogy. I had thought to begin with Rick 
Hasen's observation that election law has two "very different parents, constitutional law and 
political science." Hasen, supra note 1, at 1095. Just play out the metaphor, though, and you will 
realize that the Oedipal implications are just a bit too much for a respectable law review. 

15. Perhaps this is to our detriment. See, e.g., Joseph Fishkin, Equal Citizenship and the 
Individual Right to Vote, 86 Ind. L.J. (forthcoming 201 1). 

16. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). 



10 INDIANA LAW REVIEW [Vol. 44:7 



governing body as a "they," not an "it." 17 

I do not want to make the foolish claim that election law scholars have a 
monopoly over the insights and sensibilities described below. But these insights 
and sensibilities constitute the dominant melody in election law, while elsewhere 
they tend to sound as a minor theme. For that reason, perhaps it is time to 
translate election law's insights into the domain of constitutional law. Here, I 
will offer several examples of what this might look like in practice. 

I. Election Law and Equal Protection 

My first example is equal protection. As with traditional constitutional law, 
the question of racial equality has dominated much of the debate within the field. 
But election law scholars have developed a distinctive set of insights about 
equality and identity, many of which may be relevant to conventional 
constitutional law debates. Here, then, I will try to give you a sense of what the 
election law empire building might look like going forward. 18 In my view, the 
key insight that election law affords us is that the path to equality does not move 
straight from civil inclusion to full integration, but instead requires an 
intermediary stage: political empowerment. 19 

A. Race and Politics 

During the last two decades of intense litigation over the constitutionality of 
the Voting Rights Act and the districts it has produced, election law scholars 
have regularly pointed out that Fourteenth Amendment mandates should not be 
mindlessly applied to the arena of politics. 20 Many of these arguments were 
developed in response to the Supreme Court's Shaw jurisprudence, where the 
Court struck down bizarrely shaped majority-minority districts for being unduly 
race-conscious, condemning them as "segregate [d]" and a form of "political 



17. See infra text accompanying notes 54-61. The reference, of course, is to Kenneth 
Shepsle, Congress Is a "They, " Not an "It ": Legislative Intent as Oxymoron, 1 2 Int'l Rev. L. & 
ECON. 239(1992). 

18. Empire building in this area has become an academic obsession of mine. See, e.g., 
Heather K. Gerken, Justice Kennedy and the Domains of Equal Protection, 121 HARV. L. Rev. 104 
(2007) [hereinafter Gerken, Domains of Equal Protection]; Heather K. Gerken, Second-Order 
Diversity, 1 18 HARV. L. Rev. 1099 (2005) [hereinafter Gerken, Second-Order Diversity]; Heather 
K. Gerken, The Foreword: Federalism All the Way Down, 123 HARV. L. Rev. (forthcoming 20 10) 
[hereinafter Gerken, Federalism All the Way Down]. 

1 9. See Gerken, Federalism All the Way Down, supra note 1 8. 

20. See generally T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redisricting: 
Drawing Constitutional Lines After Shaw v. Reno, 92 MICH. L. Rev. 588 (1993); Samuel 
Issacharoff & Thomas C. Goldstein, Identifying the Harms in Racial Gerrymandering Claims, 1 
Mich. J. Race & L. 47 (1996); Pamela S. Karlan, All Over the Map: The Supreme Court 's Voting 
Rights Trilogy, 1993 Sup. Ct. Rev. 245; Pamela S. Karlan, The Rights to Vote: Some Pessimism 
About Formalism, 71 TEX. L. REV. 1705 (1993); Pildes, Principled Limitations, supra note 3. 



2010] KEYNOTE ADDRESS 11 



apartheid." 21 

Scholars challenged the Court's decision to import conventional equal 
protection analysis into the districting context by arguing that politics is different 
and thereby building the case for election law's exceptionalism. The most 
interesting arguments centered on the ways in which majority-minority districts 
might have dynamically integrative effects, furthering rather than undermining 
the long-term goals of the Fourteenth Amendment. Without delving into the 
merits of the arguments, let me give you three examples of the kinds of 
arguments scholars have made in their efforts to distinguish race-conscious 
districting from the other forms of race-conscious decisionmaking. 

The first example goes to the material benefits associated with majority- 
minority districts. Many scholars have argued that having the representatives of 
racial minorities at the political table to lend their "voice" or "perspective" 
results in more enlightened laws. But election scholars have drawn upon a more 
muscular conception of the role that minority representation plays in politics. 

Pamela Karlan and Samuel Issacharoff, for instance, have argued that 
economic progress for African-Americans has turned not on the vindication of 
civil rights (the conventional model in constitutional law), but on business set- 
asides, affirmative action, and government employment. 22 In their view, those 
programs came about precisely because blacks and Latinos were able to elect 
their candidates of choice in districts drawn in a race-conscious fashion. "[T]he 
creation of a black middle class," they write, "has depended on the vigilance of 
a black political class." 23 One might even argue that this is the story of 
integration for white ethnics as well, as Justice Souter argued in his dissent in 
Bush v. Vera, another voting rights case. 24 In Souter' s view, the Lithuanian and 
Polish wards in Chicago and the Irish and Italian political machines in Boston 
helped integrate ethnic groups into the system. 25 In his words, it "allowed 
ethnically identified voters and their preferred candidates to enter the mainstream 
of American politics and to attain a level of political power in American 
democracy," something that ultimately "cooled" ethnicity's "talismanic force." 26 

Note the relationship between political power and integration on this view. 
Political power did not just facilitate economic integration. Politics exerted a 
gravitational pull on outsiders, bringing them into politics and making them feel 
part of it. Majority-minority districts gave racial minorities (and before them, 
white ethnics) a stake in the system. It afforded them the status of insiders even 
as it recognized their distinctive outsider identities. 

The second argument is mostly mine. 27 Building on the work of Pamela 



21. Shaw v. Reno, 509 U.S. 630, 647, 658 (1993). 

22. Samuel Issacharoff & Pamela S. Karlan, Groups, Politics, and the Equal Protection 
Clause, 58 U. Miami L. Rev. 35, 49 (2003). 

23. Id. 

24. Bush v. Vera, 517 U.S. 952, 1054 (1996) (Souter, J., dissenting). 

25. Mat 1060. 

26. Id. at 1074-75 (citations omitted). 

27. See Gerken, Second-Order Diversity, supra note 18. 



12 INDIANA LAW REVIEW [Vol. 44:7 



Karlan 28 as well as Anne Phillips's observation that "[pjolitics is not just about 
self-interest, but also about self-image," 29 1 have argued that majority-minority 
districts might generate constitutive and expressive benefits that further the 
integrative ideal — that power and identity might be more closely tied than we 
typically assume. The grand insight of the Voting Rights Act, in my view, is that 
creating statistically "integrated" districts would relentlessly reproduce in every 
district the same inequalities racial minorities experience almost everywhere else. 
Majority-minority districts, in contrast, turn the tables, allowing the usual losers 
to win and the usual winners to lose. Where voting is racially polarized — where 
whites and non-whites consistently prefer different candidates at the 
polls — creating districts that mirror the underlying statewide population would 
condemn racial minorities to lose (or, at best, to influence) every contest. 
Majority-minority districts give racial minorities a chance to enjoy the same type 
of participatory experience — the sense of efficacy or agency associated with 
being in charge — that is usually reserved for members of the majority. It is not 
difficult to imagine why racial minorities would desire a chance to be in charge 
for reasons that have nothing to do with political outcomes or the distribution of 
tangible goods. If racial minorities have a sense that members of the majority 
have been able to elect a champion, someone fighting on their behalf, they might 
relish the chance to elect a champion of their own for purely dignitary reasons. 

Michael Kang suggests that majority-minority districts may be integrative in 
a third, even more counterintuitive, fashion. 30 He argues that such districts 
ultimately reduce racial bloc voting because they temporarily pull race out of the 
political discussion and thereby help fracture, rather than reify, racial 
categories — just the opposite of most predictions. 31 Kang points out that where 
voting is racially polarized, racial minorities have every incentive to vote 
monolithically, as that is their only hope of electing a candidate of choice. The 
result, writes Kang, is that race becomes a "conversation stopper" as "[pjolitics 
. . . freeze along the historically dominant axis of race, removing incentives for 
political leaders to challenge the public with new choices and understandings 
inconsistent with the entrenched racial alignment." 32 

Kang argues that the solution to this problem is majority-minority districts. 33 
In such districts, Kang points out, it is all but a given that the candidate of choice 
for the minority group will win the general election. As a result, minority voters 



28. Pamela S. Karlan, Just Politics? Five Not So Easy Pieces of the 1995 Term, 34 Hous. 
L. Rev. 289, 307 ( 1 997) (targeting majority-black districts but not majority-white districts suggests 
that "whites somehow are injured by being placed in racially integrated settings in which they do 
not constitute the dominant group"); Pamela S. Karlan, Our Separatism? Voting Rights as an 
American Nationalities Policy, 1995 U. Chi. LEGAL F. 83, 94-95 (suggesting that Shaw grew out 
of a fear of "the prospect of African- American control"). 

29. Anne Phillips, The Politics of Presence 79 ( 1 995). 

30. Michael S. Kang, Race and Democratic Contestation, 117 Yale L.J. 734 (2008). 

31. Id. at 787. 

32. Id. at 778. 

33. Id. at 778-84. 



20 1 0] KEYNOTE ADDRESS 1 3 



can enjoy the luxury of division and debate during the primary. 34 Rather than 
coalescing behind a single candidate, racial minorities are able to engage in the 
usual stuff of pluralist politics, something that will in the long run break down 
racial categories. Majority-minority districts, then, create not just statistically 
integrated legislatures, but a genuinely integrated polity. 

All three of these arguments grew out of the peculiar sensibility of election 
scholars. 35 As Karlan has observed, the dominant story about race told in 
constitutional law circles depicts racial minorities as "objects of judicial 
solicitude, rather than as efficacious political actors in their own right." 36 
Constitutional law scholars often tell precisely that story when they are talking 
about race and elections. For instance, they fold majority-minority districts into 
whatever variant of that conventional story they prefer. Liberals tend to view 
majority-minority districts as a race-conscious strategy for integrating the 
legislature, much as they view affirmative action as a strategy for integrating 
universities. Conservatives generally see them as yet another example of what 
they think of as hand-outs, akin to affirmative action or minority business set- 
asides. 

Election law scholars, in sharp contrast, see majority-minority districting as 
a tool of empowerment, something that pushes society toward a deeper, more 
robust form of racial integration. Election law scholars are not imposing a vision 
of race on politics; they are imposing a vision of politics on race. They see racial 
minorities as they see other groups in the political system — as "efficacious 
political actors" rather than "objects of judicial solicitude" — and thus tell a 
distinctive story about race and districting. 37 Karlan and Issacharoff s electoral 
tale does exactly that, showing the ways that political empowerment allows racial 
minorities to protect themselves instead of looking to the courts for protection. 
Similarly, the notion of "turning the tables" suggests that racial minorities need 
not be protected from the rough-and-tumble of politics to succeed; they simply 
need the same type of voting power that whites routinely enjoy. 

While many constitutional law scholars argue that race is a semi-fluid 
category, 38 shaped by interactions between individuals and the world around 
them, they can be exasperatingly vague about which institutional mechanisms 
shape racial identity and how. For scholars of the political process, thinking 



34. See id. at 798. 

35. The next two paragraphs draw upon Gerken, Domains of Equal Protection, supra note 
18. 

36. Pamela S. Karlan, John Hart Ely and the Problem of Gerrymandering: The Lion in 
Winter, 114 YALE L.J. 1329, 1332(2005). 

37. Id. 

38. See, e.g., K. Anthony Appiah & Amy Gutmann, Color Conscious: The Political 
Morality of Race 78-80 (1996); Richard T. Ford, Beyond "Difference": A Reluctant Critique 
of Legal Identity Politics, in LEFT Legalism/Left CRITIQUE 38, 48 (Wendy Brown & Janet Halley 
eds., 2002); see also Martha Minow, Not Only for Myself: Identity, Politics, and the Law 
50-5 1 ( 1 997); Iris Marion Young, Inclusion and Democracy 99 (2000); Iris Marion Young, 
Justice and the Politics of Difference 183-91(1 990). 



14 INDIANA LAW REVIEW [Vol. 44:7 



about the relationship between institutions and identity seems to come more 
naturally. The notion of "turning the tables," for instance, requires us to think 
of identity formation in the context of actual institutional arrangements — where 
there are a consistent set of winners and losers — rather than imagining it solely 
in individual or group-based terms. Accordingly, Kang's work on districts and 
racial identity draws upon substantial political science work about the way 
elections make questions salient and frame issues for voters. Because election 
scholars are familiar with the gravitational pull power exerts on outsiders, the 
role that politics plays in driving a debate, and the ways in which power and 
identity connect in the context of politics and governance, they have been able 
to leverage those insights in order to offer a distinctive view on racial equality. 

Lest you think that election scholars have invoked election law's 
exceptionalism only to muster arguments in favor of majority-minority districts, 
consider the work on the other side of this debate. For example, precisely 
because districts are drawn to elect a legislature, election law scholars are 
exquisitely aware of the trade-offs involved in race-conscious districting. Rick 
Pildes and Sam Issacharoff, for instance, have repeatedly argued that majority- 
minority districts can pack minority (and, often, Democratic) voters and thereby 
reduce the power racial minorities wield at the legislative level. 39 They argue 
that because representatives of racial minorities have favored reducing the 
percentage of black and Latino voters in a district, as in Georgia v. Ashcroft, 40 
courts should not second-guess those political deals in the name of equality but 
instead should let members of those groups do what other groups do in a healthy 
democracy: negotiate the best political deal possible. 41 

Note that even while Pildes and Issacharoff take a different policy position 
than others in the field, their argument exhibits substantial continuity with the 
arguments above. It turns on a vision of equality that involves empowering racial 
minorities to protect themselves rather than turning to the courts for assistance. 42 

B. Empire Building and Equality 

So now we turn to the possibility of empire building. Although election law 
scholars have written about this concept in the context of political regulation, 
their insights are relevant to conventional constitutional law analysis as well. 
These insights may not translate directly; context does matter, after all. But at 
the very least this work raises a set of questions worth exploring in constitutional 



39. See, e.g., Samuel Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own 
Success?, 104 COLUM. L. Rev. 1710, 1716-20 (2004); Pildes, Foreword, supra note 9, at 88-99. 

40. 539 U.S. 46 1 , 469-70 (2003) ("as the black voting age population in a district increase[s] 
beyond what [is] necessary [to elect officials of choice] . . . you diminish the power of African- 
Americans overall"). Making the case for the other side is Pamela S. Karlan, Georgia v. Ashcroft 
and the Retrogression of Retrogression, 3 ELECTION L.J. 2 1 (2004). 

41 . See Issacharoff, supra note 39, at 1728. 

42. For further analysis, see Heather K. Gerken, A Third Way for the Voting Rights Act: 
Section 5 and the Opt-In Approach, 106 COLUM. L. REV. 708 (2006). 



20 1 0] KEYNOTE ADDRESS 1 5 



law. After all, electoral districts are not the only place where racial minorities 
dominate. They will sometimes constitute majorities on city councils, school 
boards, juries, and the like. But while majority-dominated electoral districts are 
a widely accepted strategy for promoting integration in the electoral context, the 
opposite is true in most of constitutional law. 43 Indeed, setting federalism aside, 
we do not have an account about the benefits of minority rule for the institutions 
where racial minorities have some chance of ruling (institutions that are smaller 
than states, which are generally too big for racial minorities to dominate). To the 
contrary, we generally treat local institutions dominated by racial minorities with 
suspicion, something that matters a great deal for how constitutional law 
regulates them. It seems to me that introducing the sensibilities of election 
scholars to the questions of minority governance in constitutional law might 
provide a usefully fresh perspective. At the very least, it might help us develop 
a more coherent account of whether minority-dominated governance matters in 
those other areas and why. 

Our skepticism about minority-dominated institutions outside of federalism 
runs so deep that it is inscribed in our very vocabulary. We have a firm sense of 
what "integration" or "diversity" looks like — we value institutions that look like 
the community from which they are drawn, that "look like America," to use Bill 
Clinton's favorite phrase. We thus use the term "diversity" to describe decision- 
making bodies that statistically mirror the underlying population — if blacks are 
twenty- five percent of the population, they should be twenty-five percent of the 
decision-making body — and often deem institutions "integrated" even when they 
contain only a token number of minorities. As a result of the talismanic 
significance of Brown, 44 we are deeply skeptical of institutions that depart from 
this vision of integration. When racial minorities constitute statistical majorities 
in an institution, we often call those institutions "segregated" and condemn them 
as such. 

Consider, for instance, the Court's race jurisprudence. In City of Richmond 
v. J. A. Croson Co. 45 the Court relied on the great John Hart Ely to hold that a 
minority set-aside program was more constitutionally suspect because it had been 
enacted by a black-majority city council. 46 Lest you think only the 
colorblindness camp views minority-dominated institutions with hostility, keep 
in mind the terminology used by every Justice who wrote in the recent school 
desegregation case, Parents Involved in Community Schools v. Seattle School 
District No. I 41 They all condemned heterogeneous schools where minorities 
dominated as "segregated." 



43. For further exploration, see Gerken, Domains of Equal Protection, supra note 18; 
Gerken, Federalism All the Way Down, supra note 18; Gerken, Second-Order Diversity , supra note 
18. The next few paragraphs that follow are drawn from Gerken, Federalism All the Way Down, 
supra note 18. 

44. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954). 

45. 488 U.S. 469(1989). 

46. Id. at 495-96. 

47. 551 U.S. 701 (2007). 



1 6 INDIANA LAW REVIEW [Vol. 44:7 



Setting aside the merits of these decisions, it is odd that we so quickly affix 
the dreaded label "segregation" to institutions where racial minorities dominate. 
Critical distinctions get lost when we cast these issues as debates about 
integration versus segregation. The most obvious is that these institutions may 
be different from the racial enclaves of Jim Crow. The less obvious is that 
viewed through the lens of election law, we might imagine these institutions as 
sites for empowering racial minorities rather than oppressing them, for 
integrating racial minorities rather than segregating them. 

You might wonder, of course, why anyone would quarrel with the notion that 
democratic bodies should "look like America" unless, of course, you happen to 
be an election law scholar. As members of my academic tribe would be quick to 
point out, the oddity of this theory for "empowering" racial minorities is that it 
relentlessly reproduces the same inequalities on governance bodies that racial 
minorities experience nearly everywhere else. It is as if we imagine that the path 
of integration moves straight from civic inclusion to full integration. We miss 
the possibility that there is an intermediary stage along the path to integration: 
political empowerment. 48 

It should be possible to believe in, even revere, the work of the Civil Rights 
Movement and still wonder about these questions. Civic inclusion was the 
hardest fight. But it turns out that discrimination is a protean monster and more 
resistant to change than one might think. It may require new, even unexpected 
tools before we reach genuine integration. As a voting rights scholar, I find it 
hard not to imagine political empowerment being one of those tools. 

If we place minority-dominated institutions in the same category as majority- 
minority districts, it is possible to imagine all three of the arguments that have 
been used to support majority-minority districts being applied to mainstream 
constitutional law. We can start with the material benefits associated with racial 
empowerment — the Karlan and Issacharoff argument that success of the black 
middle class has depended on the vigilance of the black political class. Now 
think about Croson, where the black-majority city council in Richmond created 
a minority set-aside program, only to have it struck down by the Court for 
violating the Fourteenth Amendment. 49 If we imagined cities as sites of minority 
empowerment, however, we might recast the debate over Croson much as 
Issacharoff and Karlan recast the debate over majority-minority electoral 
districts. It would push us toward a more rough-and-tumble vision of equality 
than the rights model, one that recognizes the dignity in groups protecting 
themselves rather than looking to the courts for solace. It would also buttress 
Justice Marshall's dissent, which observed that if anyone were familiar with the 
existence of past discrimination and the need for remedying its present effects, 
it would be the representatives of the black community in Richmond, the former 
capital of the Confederacy. 50 



48. For a fuller exploration of the ideas in the next few paragraphs, see Gerken, Federalism 
All the Way Down, supra note 18. 

49. Croson, 488 U.S. at 477-78, 511. 

50. Id. at 528-29 (Marshall, J., dissenting). 



2010] KEYNOTE ADDRESS 17 



We could just as easily imagine the other arguments election law scholars 
have made in the districting context applying outside of elections. We might 
value governing bodies which turn the tables, allowing blacks and Latinos to 
enjoy the same sense of efficacy — and deal with the same types of problems — as 
the usual members of the majority. These institutions would give racial 
minorities the opportunity to stand in the shoes of the majority. Racial minorities 
would have a chance to forge a consensus and fend off dissenters, to get 
something done and compromise more than they would like. Similarly, if Kang's 
insights apply elsewhere, we might imagine it would be useful to have 
institutions where blacks and Latinos can spend their time debating the usual 
stuff of pluralist politics. 51 Or, consistent with the insights of Pildes and 
Issacharoff, we might think that the influence and control trade-offs that can exist 
in the elections context exist for other nested governing structures as well. 52 All 
of these arguments may be relevant to ongoing debates about race and 
governance in the context of mainstream constitutional law, but they have yet to 
be fully explored by mainstream constitutional law scholars. 

II. Intellectual Arbitrage on the Structural Side 
of Constitutional Law 

Let me give you a few more, necessarily stylized, examples of areas where 
the sensibilities of an election law scholar might prove useful in the context of 
constitutional law. 53 Here I will turn from the rights-side of the Constitution to 
the structural-side and discuss some of the arguments election law scholars could 
bring to bear on mainstream constitutional debates surrounding the separation of 
powers and federalism. In each instance, viewing these debates through the lens 
of politics and partisan competition has usefully complicated the discussion. 
Here again, while election law scholars certainly do not have exclusive access to 
these ideas, they so dominate the field that they seem likely to frame our 
understandings of the debates that dominate conventional constitutional law 
going forward. Indeed, while no author discussed below has self-consciously 
cast himself as translating election law's insights into constitutional law, a fair 
amount of empire building has already occurred in these areas. 

A. Refraining Separation of Powers and Federalism 

When constitutional scholars talk about the horizontal and vertical diffusion 
of powers, they typically think in institutional terms. Separation of powers 
scholars, for instance, talk about the relationship between Congress and the 
President. Federalism scholars talk about the relationship between the federal 



5 1 . For efforts to apply this argument elsewhere, see Gerken, Domains of Equal Protection, 
supra note 18; Gerken, Second-Order Diversity, supra note 18. 

52. See, e.g., Gerken, Second-Order Diversity, supra note 18, at 1124-42 (making this 
argument). 

53. Here again, I will set aside the merits of individual arguments and simply focus on 
representative types of ideas that election law scholars might bring to bear on these debates. 



1 8 INDIANA LAW REVIEW [Vol. 44:7 



government and the states. Much of this scholarship displays a formalist bent; 
it tends to treat these institutions as if they were unitary actors with static 
identities across time. 

Election law scholars tend to view these institutions differently. Indeed, it 
is rare to find a formal conception of the state anywhere in election law 
scholarship. That is because election law scholars see the problem of political 
lock-up everywhere. Recognizing that political actors do not shed party 
identities when they take office, election law scholars have long viewed 
governance as a site for pursuing partisan interests, even as a staging ground for 
national debates. As a result, election law scholars have long thought that "the 
State" is best understood as "a constellation of currently existing political and 
partisan forces." 54 

Some of the most interesting work in constitutional law has applied this 
insight to conventional constitutional law debates. Daryl Levinson and Richard 
Pildes's article, Separation of Parties, Not Powers, 55 is a fine example. The 
authors argue that it is a mistake to assume that the separation of powers, 
standing alone, will ensure the Madisonian goal that ambition be made to counter 
ambition. 56 In our age of cohesive national parties, they argue, Congress and the 
Presidency must be controlled by different parties for the separation of powers 
doctrine to have real teeth. Or consider Pildes's claim — again, deeply informed 
by his attentiveness to political incentives — that while most separation of powers 
scholars tend to worry about congressional overreaching, the more serious threat 
is "the problem of political abdication." 57 

Federalism doctrine has been a particularly fertile target for applying the 
insights of election law to mainstream constitutional law. For instance, Larry 
Kramer was able to reconceptualize the political safeguards of federalism 
precisely because he was so attentive to the role political parties play in 
integrating state and national politics. Recognizing that the states and the federal 
government are not unitary, but are instead an agglomeration of a variety of 
political forces, Kramer devoted two pieces to showing that one of the most 
important safeguards of state power is the influence state and national officials 
have on one another by virtue of their shared party membership. 58 Or consider 
Ernie Young's work analogizing state governments to the "shadow governments" 
found in European systems — sites for the party out of power at the national level 



54. Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the 
Democratic Process, 50 STAN. L. REV. 643, 653 (1998). 

55. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 1 19 Harv. 
L. REV. 23 12 (2006); see also Daryl J. Levinson, Empire-Building Government in Constitutional 
Law, 118 HARV. L. Rev. 915 (2005) [hereinafter Levinson, Empire-Building]. 

56. See The Federalist No. 5 1 , at 320 (James Madison) (John C. Hamilton ed., 1 888). 

57. Richard H. Pildes, Political Avoidance, Constitutional Theory, and the VRA, 1 17 YALE 
L.J. Pocket Part 148, 148 (2007). 

58. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 
100 COLUM. L. REV. 215 (2000); Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 
1485(1994). 



20 1 0] KEYNOTE ADDRESS 1 9 



to build its "farm team" and develop competing policy objectives. 59 Finally, 
consider Daryl Levinson's counterintuitive account of the political incentives that 
govern state-federal interactions. 60 These and other examples suggest the many 
ways in which the overlay of politics can complicate existing scholarship on 
government institutions. 61 

B. The Constitution During Times of Emergency 

Here is another example, one drawn from the recent debate over 
constitutional law during times of emergency. As I noted above, election law 
scholars tend to think of individual rights in structural terms, and they devote as 
much time to the second prong of the Carolene Products footnote as to the third. 
Issacharoff and Pildes, who were first to argue that election law cases should be 
analyzed through a structural rather than a rights-based lens, 62 have recently 
applied that insight to a long-standing debate over the enforcement of 
constitutional rights during times of emergency. Although the rights-structure 
debate has occurred in many areas of constitutional law, 63 constitutional lawyers 
who have focused on the Constitution during times of trouble have typically 
rotated around three positions, all of which reflected their rights-oriented 
sensibilities. The first was the civil libertarian position — that the Constitution 
applies in undiluted form whether or not there is an emergency. 64 The second is 
that the Constitution is flexible enough to accommodate wartime activities, a 



59. Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the 
Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1285-87 (2004). 

60. Levinson, Empire-Building, supra note 55, at 938-46. 

61 . See Akhil Reed Amar, Some New World Lessons for the Old World, 58 U. Cffl. L. Rev. 
483, 499-504 (1991) (discussing the role states play in monitoring federal officials and training the 
loyal opposition); see also Lynn A. Baker & Ernest A. Young, Federalism and the Double 
Standard of Judicial Review, 51 DukeL.J. 75, 137-38 (2001); Vicki C. Jackson, Federalism and 
the Uses and Limits of Law, Printz and Principle? , 111 HARV. L. Rev. 2180, 2221-23 (1998) 
(noting the usefulness of "direct[ing] political activism and organizing" the states precisely because 
their borders do not map exactly on to divisive political identities); Andrzej Rapaczynski, From 
Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. Ct. Rev. 341, 
386-88 (depicting local power as a "counterbalance" to political lock-up at the federal level); Judith 
Resnik, Law 's Migration: American Exceptionalism, Silent Dialogues, and Federalism 's Multiple 
Ports of Entry, 115 Yale L. J. 1 564 (2006) (recognizing the role the local actor plays in promoting 
international rights and transnational cooperation). This work has also helped scholars move in a 
comparative direction. See, e.g., Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 
1405 (2007). 

62. Issacharoff & Pildes, supra note 54, at 646-48. 

63. See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 
231-83 (1998); Laurence H. Tribe, Comment, Saenz Sans Prophecy: Does the Privileges or 
Immunities Revival Portend the Future — Or Reveal the Structure of the Present?, 1 1 3 HARV. L. 
Rev. 110(1999). 

64. See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). 



20 INDIANA LAW REVIEW [Vol. 44:7 



position famously articulated by Justice Frankfurter. 65 On this view, 
constitutional rights are judicially enforced during times of emergency, but they 
are enforced in a more flexible fashion. 66 The third, offered by Justice Jackson, 
is the view that although the President would inevitably transgress constitutional 
mandates, the Constitution should not bless those transgressions for fear that 
such judicial decisions would wind up diluting constitutional rights during 
peacetime. 67 Even if all of these arguments were in some sense about 
constitutional structure, they remained firmly anchored to a rights-based model. 
Pildes and Issacharoff offered something quite different. Speaking in the 
cadence of election scholars, they offered an institutional account of how the 
Constitution should work during times of emergency, one that put meat on the 
bones of Justice Jackson's famous tripartite framework in the Steel Seizure 
case. 68 During times of crisis, they argued, courts should police second-order 
questions of who decides, not first-order questions involving rights and 
substance. 69 Thus, for instance, Pildes and Issacharoff argued that courts ought 
to make the classic move of John Hart Ely 70 — whose ideas continue to dominate 
the field of election law — and issue democracy- forcing decisions that push the 
democratic branches (particularly Congress) to act rather than rely on the Court 
to enforce substantive rights. The goal is the same: to protect individual liberties 
and place sensible limitations on executive power. But the means they advocated 
were strikingly different; they depended on an institutional solution rather than 
a rights-based one. Perhaps it is unsurprising that election scholars, with their 
institutional sensibilities and attentiveness to the relationship between formal law 
and informal politics, were the ones to make the most sustained argument in this 
area. 

C. The Mismatch Problem 

Let me offer one final example of the type of intellectual arbitrage that might 
occur if election law scholars wrote more about constitutional law. Election law 
scholars are acutely aware of the problem of the low-information voter; it is an 
idea that dominates political science and heavily influences our own work. Much 
of our work thus deals with a variant of what David Schleicher calls the 
"mismatch problem," 71 which arises when we ask voters to perform a 



65. Korematsu v. United States, 323 U.S. 214, 224-25 (1944) (Frankfurter, J., concurring). 

66. Id. 

67. Id. at 242-48 (Jackson, J., dissenting). 

68. Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive 
Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 THEORETICAL 
Inquiries L. 1 (2004). 

69. Id. at 8. 

70. See John Hart Ely, Democracy and Distrust ( 1 980). 

71. David Schleicher, What if Europe Held an Election and No One Cared? 2-1 1 (George 
Mason Univ. Law & Econ., Research Paper No. 09-68, 2009), available at http://papers.ssrn.com/ 
sol3/papers.cfm?abstract_id=1525015. It is worth noting that Schleicher's terminology covers 



20 1 0] KEYNOTE ADDRESS 2 1 



constitutional role without the tools they need to do so. Mismatches typically 
occur when voters lack the right kind of shorthand to make sensible decisions 
about ongoing policy debates. I have done some work on how this problem 
connects to the bread-and-butter election law questions, 72 as have scholars like 
David Schleicher, 73 Michael Kang, 74 Elizabeth Garrett, 75 and Nathaniel Persily 
and his co-conspirators Steve Ansolabehere and Joshua Fougere. 76 

In some senses, this scholarship is of a piece with the scholarship I just 
described. It recognizes that just as we cannot understand "the State" or 
"Congress" without the lens of politics, so too must we think about the 
institutional and political structures that frame issues for voters before we are 
confident that we know what "the People" think. 

The problem of the low-information voter pops up in many places in 
constitutional law. 77 For instance, think about the accountability argument that 
the Supreme Court found so appealing in several of its most recent federalism 
decisions, those prohibiting the federal government from "commandeering" state 
officials and requiring them to carry out federal law. The Court was worried that 
commandeering would blur the lines of accountability, making it hard for voters 
to know which government was responsible for which policy. 78 Any election 
scholar worth her salt would have immediately questioned this kind of argument. 



problems other than the one I describe here. 

72. See Heather K. Gerken, The Democracy Index: Why Our Election System Is 
Failing and How to Flx It (2009); Heather K. Gerken & Douglas B. Rand, Creating Better 
Heuristics in the Presidential Nominating Process: Why a Citizens Assembly Beats out Iowa and 
New Hampshire, 125 Pol. Sci. Q. (forthcoming 2010). 

73. Schleicher, supra note 71; see also David Schleicher, Why Is There No Partisan 
Competition in City Council Elections?: The Role of Election Law, 23 J.L. & POL. 419 (2007). 

74. Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence 
Through Heuristic Cues and "Disclosure Plus, " 50 UCLA L. REV. 1141 (2003). 

75. See, e.g., Elizabeth Garrett, The Law and Economics of "Informed Voter" Ballot 
Notations, 85 Va. L. Rev. 1533 (1999); Elizabeth Garrett, Voting with Cues, 37 U. Rich. L. Rev. 
1011 (2003); see also Elizabeth Garrett & Matthew D. McCubbins, Faith in Reason: Voter 
Competence and Local Bond Propositions (USC Keston Inst, for Pub. Finance and Infrastructure 
Policy, Research Paper No. 07-01, 2007), available at http://www.usc.edu/schools/sppd/keston/pdf7 
20070 1 30-faith-in-reason.pdf. 

76. Joshua Fougere et al., Partisanship, Public Opinion, and Redisricting, in RACE, REFORM, 
and Regulation of the Political Process: Recurring Puzzles in American Democracy 
(Charles et al. eds., 2010). 

77. Ilya Somin is one of the rare constitutional law scholars to write in this vein. See, e.g., 
Ilya Somin, Knowledge About Ignorance: New Directions in the Study of Political Information, 
18 CRITICAL Rev. 255 (2006); Ilya Somin, Political Ignorance and the Countermajoritarian 
Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 IowaL. Rev. 
1 287 (2004); Ilya Somin, Voter Knowledge and Constitutional Change: Assessing the New Deal 
Experience, 45 WM. & MARY. L. REV. 595 (2003). 

78. Printz v. United States, 521 U.S. 898, 929-30 (1997); New York v. United States, 505 
U.S. 144, 168-69(1992). 



22 INDIANA LAW REVIEW [Vol. 44:7 



We all know that political accountability depends largely on voters' reliance on 
broadly defined partisan heuristics, not fine-grained policy judgments. Thus, as 
Neil Siegel and others have concluded, while high-information voters should be 
able to figure out which government is responsible for what, low-information 
voters "may be largely beyond judicial or political help on the accountability 
front." 79 

Conclusion 

Nothing in this paper is meant to imply that election law scholars have a 
monopoly on these insights; such a statement would be flatly untrue and 
inconsistent with some of my own examples. But election law scholars are 
united by a similar sensibility and attracted to a similar set of questions. It may 
be easier for us to recognize certain kinds of recurring puzzles about the 
allocation of power, the relationship between formal and informal structures, and 
the connection between identity and institutions. Think about the first example 
with which I began. As I noted above, most constitutional law scholars 
instinctively fold the story of race in the electoral domain into the familiar story 
they tell about race in constitutional law. 80 Election law scholars do the 
opposite — they instinctively fold the story of race into their story about the 
electoral domain. And by focusing on the elections domain rather than on race 
per se, they end up telling a distinctive tale about equal protection, one that may 
have resonance outside of that domain. 

The examples I offer here suggest that the same may be true of constitutional 
law more generally. So, returning to my earlier theme, let me close by suggesting 
that perhaps it is time for the field of election law — which has traveled from a 
constitutional law outpost to an independent intellectual terrain — to contemplate 
a bit of empire building of its own. 



79. Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 
Vand. L. Rev. 1629, 1632 (2006). 

80. See supra text accompanying notes 38-42. 



The Founders' Bush v. Gore: The 1792 Election 
Dispute and Its Continuing Relevance 



Edward B. Foley" 



Introduction: The Gap in Our Constitutional Architecture 

The 2000 presidential election re-exposed a critical weakness in the 
Constitution's procedures for determining the winner of the presidency when the 
outcome is disputed. The Constitution says only that, with both houses of 
Congress present, the Vice President of the United States (acting as president of 
the Senate) shall open the certificates of the Electoral College votes sent from the 
states, "and the votes shall then be counted." 1 Using the passive voice, this clause 
suggests, without specifying clearly, that the Vice President holds the authority 
to resolve any dispute over counting the Electoral College votes from the states. 2 
Yet the Vice President may well be one of the competing candidates seeking the 
office of the presidency, as Al Gore was in 2000, and it is an obvious conflict of 
interest to give this individual the authority to decide the dispute. 

This indeterminate constitutional clause, however, offers no obvious 
alternative. Do the two houses of Congress vote together as a single combined 
body, a procedure not contemplated elsewhere in the Constitution and, to my 
knowledge, unheard of in the practices that have unfolded since the Founding? 
Surely, the Framers of the Constitution would have spelled out this unusual 
procedure with a bit more specificity if that is what they had in mind. Yet 
suppose the two houses vote separately, as is the regular practice with Congress. 
What if the two houses are split on the issue in dispute? The question of which 
candidate won the presidency is not like a piece of legislation, which can die 
unenacted if the two houses do not agree. The nation needs to inaugurate its 
newly elected President — all the more so since the President's role in protecting 
national security has inevitably increased in the aftermath of World War II. 3 



* Director, Election Law @ Moritz, and Robert M. Duncan/ Jones Day Designated Professor 
of Law, Moritz College of Law at The Ohio State University. A version of this Article was 
delivered as The Ohio State University's Distinguished Lecture on October 14, 2008, and a video 
of that lecture is archived at http://www.osu.edu/lecture/foley/index.php. At the beginning of that 
lecture, I thanked many individuals for their assistance on this project — too many to repeat in this 
footnote. Here, I would like to single out those who have been instrumental in helping this project 
move from lecture to published paper: Kathy Hall, Caryn Kaufman, Kyle Kopko, Daphne 
Meimaridis, Kevin Oles, Matt Steinke, and Matt Walsh. Unfortunately, readers will never know 
firsthand how energetically and enthusiastically these wonderful individuals worked to make this 
Article be as thoroughly documented, accurate, and informative as possible. To the extent that my 
own contributions fall short of the standards they have set, I plead that at least I have tried my best. 

1. U.S. Const, amend. XII. 

2. For an extensive discussion of the problems that this passage in the Twelfth Amendment 
has caused, see Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional 
Ticking Time Bomb, 64 U. MIAMI L. REV. 475 (2010). 

3. For one of many works that discuss the rise of presidential power since World War II, 



24 INDIANA LAW REVIEW [Vol. 44:23 



Thus, the dispute over which candidate won the White House cannot remain 
deadlocked, with each house of Congress reaching opposite conclusions. Yet the 
Constitution itself indicates no method of breaking the deadlock other than to 
give the decision to the Vice President, who may be biased by partisanship even 
if not one of the candidates. 

The nation was forced to confront this acute constitutional weakness once 
before, in the context of settling the 1876 presidential election between 
Rutherford B. Hayes and Samuel J. Tilden. 4 There, the two houses were at odds, 
with the Republican-controlled Senate supporting Hayes and the Democratic- 
dominated House backing Tilden. In ruling for Hayes, Congress broke the 
logjam by creating a one-time-only Electoral Commission that split 8-7 along 
party lines. It took Congress another decade to develop a more permanent 
solution, the Electoral Count Act of 1 887, but even the Act's authors recognized 
that it was an inadequate substitute for a constitutional amendment to eliminate 
ambiguity over where the ultimate vote-counting authority lies in a disputed 
presidential election. 5 During that entire decade, however, Congress could never 
muster the degree of bipartisan support necessary for a constitutional amendment; 
thus, it settled for what it feasibly could enact by statute. 6 

The Electoral Count Act was then left to gather dust until 2000, when a fresh 
look at it demonstrated just how inadequate it was. 7 Assuming it was even 
possible to comprehend the Act's exasperatingly convoluted passages — no safe 
assumption at all — it appeared to provide that, in the event of a House-Senate 
deadlock, the governor of the state from which the dispute arose should settle the 
matter. 8 Apart from the general dubiousness of this proposition (why, after all, 
should the political party lucky enough to hold the governorship of the affected 
state get to prevail simply by virtue of this fact?), the proposition was a 
particularly awkward prospect in 2000 with Governor Jeb Bush of Florida being 
the brother of the Republican candidate for President in the disputed election. 9 
Additionally, there was no guarantee that a twenty-first-century Congress would 
attempt to obey the largely indecipherable dictates of a nineteenth-century 
compromise that was admittedly deficient from the outset. Thus, notwithstanding 
what was written in the Electoral Count Act, it was possible to predict that the 
Senate and the House would remain deadlocked over whether Bush or Gore had 
won heading into Inauguration Day, or beyond, with no mutually accepted 
tiebreaking mechanism available. 



see Garry Wills, Bomb Power: The Modern Presidency and the National Security State 
(2010). 

4. See Colvin & Foley, supra note 2, at 502-20 (providing details of this dispute). 

5. Mat 519-22. 

6. The details of the legislative history leading up to the adoption of the Electoral Count Act 
are discussed in Nathan L. Colvin & Edward B. Foley, Lost Opportunity: Learning the Wrong 
Lesson from the Hayes-Tilden Dispute, 79 FORDHAM L. REV. (forthcoming 2010). 

7. Colvin & Foley, supra note 2, at 522-25. 

8. Id. at 522. 

9. See id. 



2010] THE FOUNDERS' BUSH V. GORE 25 



Into the controversy stepped the U.S. Supreme Court, with the consequence 
we now know to be Bush v. Gore. 10 Whether or not it was a valiant and necessary 
effort to head off an even worse scenario if the dispute had made it all the way to 
Congress, 11 this 5-4 ruling — in which all nine Justices appeared to abandon their 
normal jurisprudential positions in order to reach a result favorable for their 
preferred presidential candidate, and in which the dissenters accused the majority 
of illegitimacy that would undermine "the Nation's confidence in the judge as an 
impartial guardian of the rule of law" 12 — is hardly the model for how one would 
wish to handle a dispute of this kind. Would it not be so much better if the 
Constitution gave us a clearly established tribunal tailored to the particularly 
tricky task of adjudicating a vote-counting dispute in a presidential election? The 
tribunal should be designed to be evenly balanced and fair to both sides in order 
to maximize the chance that the losing side perceives the outcome as legitimate 
even if incorrect from its viewpoint. Were this constitutionally specified tribunal 
to exist, the operation of democracy would seem so much more successful and 
orderly than it would if the U.S. Supreme Court instead asserted a jurisdiction 
many doubt it has — and then exercised its self-asserted jurisdiction in a way that 
appeared to reflect the partisan bias of its majority. 

Now, a decade after Bush v. Gore, the nation is no closer to getting this 
needed constitutional amendment than it was a decade after the Hayes-Tilden 
debacle. Whether we are ever able to learn from these experiences remains to be 
seen. Meanwhile, however, we can ask why the Constitution did not provide us 
with an appropriate tribunal in the first place. Perhaps if we better understand the 
causes of the defect, we will become better able to effectuate a remedy. 

Some of the explanation for the constitutional deficiency will be familiar. It 
is well-known, for example, that the Framers did not anticipate how party politics 
would affect presidential elections. 13 After the Electoral College tie in 1800 
between running mates Thomas Jefferson and Aaron Burr, the Twelfth 
Amendment was necessary to separate Electoral College voting for President and 
Vice President. 14 But to understand why the Twelfth Amendment did not create 
a mechanism for resolving the kinds of vote-counting disputes that emerged in 
1876 and 2000, it is necessary to dig deeper. An additional part of the 
explanation lies in the federalist structure of the Constitution and the presidency 
it established. The Electoral College in each state is an institution of state 
government, and it is understandable if the Framers (to the extent they thought 
about it at all) assumed that any disputes over ballots cast for a state's presidential 



10. 531 U.S. 98 (2000). 

11. See generally RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE 

Constitution, and the Courts (2001). 

12. Bush, 531 U.S. at 129 (Stevens, J., dissenting). 

13. Bruce Ackerman, The Failure of the Founding Fathers 5-6 (2005); Richard 
hofstadter, the idea of a party system 53 (1969); bernard a. weisberger, america 
Afire 14 (2001). 

14. Tadahisa Kuroda, The Origins of the Twelfth Amendment: The Electoral 
College in the Early Republic 1787-1 804 ( 1 994). 



26 INDIANA LAW REVIEW [Vol. 44:23 



electors would be handled within the state's own governmental apparatus. 

Yet federalism did not stop the dispute over Florida's presidential electoral 
ballots from reaching national institutions in either 1876 or 2000. The Framers, 
too, were lawyers (or at least many of them were), and they were smart enough 
to know that a litigant dissatisfied with one tribunal's answer would consider 
whether to pursue the same matter in a more friendly forum. If they had attended 
to the possibility of fighting over ballots cast for a state's presidential electors, 
they could have foreseen that one side would attempt to take the fight to Congress 
if that side was unhappy with how state government had handled it. 

Federalism, therefore, is not a full answer to the question. The truth, instead, 
is that the Founders were not experienced enough with disputed elections even 
at the state level. Their inexperience in this respect prevented them from 
anticipating how to handle a dispute over ballots cast for the office of presidential 
elector. To be sure, the American colonists had some experience with disputes 
over elections for seats in colonial legislatures. 15 But disputes over legislative 
elections were relatively easy to handle; the colonists inherited from England the 
doctrine that a legislative chamber shall judge the qualifications of its members. 16 
An elected executive, however, was another matter, whether the executive was 
the state's own governor or the nation's President. The Founders could not look 
to their colonial history for experience on how to handle a dispute over any kind 
of election for a chief executive. 

It would take more space than this Article to explain fully how the Founding 
Generation responded to the problem of disputed chief executive elections once 
they confronted them. In the fifty years between the Declaration of Independence 
and rise of Jacksonian democracy (which essentially coincided with the passing 
of the Founding Generation), there are several significant disputes to assess. 
Massachusetts, Pennsylvania, and Delaware all had disputed elections that shed 
some light on why the Founders left the apparatus of electoral democracy 
incomplete in this crucial regard. 17 

Still, no episode in this early period is nearly as significant as New York's 
disputed gubernatorial election of 1792. This episode directly involved some of 
the Founders most instrumental to the adoption of the U.S. Constitution, 
including John Jay and Alexander Hamilton (two of the three co-authors of the 
Federalist Papers). This dispute also received national attention at the time, 
including commentary from Thomas Jefferson and James Madison. 18 Thus, as a 
window into the thinking of the Founders on what to do when confronted with a 
major vote-counting dispute, this particular election is unparalleled. If we can 
understand how and why the Founders were surprised and perturbed that their 



15. See, e.g., Mary Patterson Clarke, Parliamentary Privilege in the American 
Colonies 135-37 (1943). 

1 6. See generally Joshua Aaron Chafetz, Democracy's Privileged Few: Legislative 
Privilege and Democratic Norms in the British and American Constitutions (2007). 

17. These other disputed elections will be discussed in the book that my Moritz colleague 
Steven Huefher and I are writing on the full history of disputed elections in the United States. 

18. See infra Part III.D. 



2010] THE FOUNDERS' BUSH V. GORE 27 



own constitutional handiwork failed them at this crucial moment, we will be in 
a better position to understand why the Founders did not provide for the kind of 
tribunal needed in 1876 or 2000. 

In short, the Founders themselves were sent reeling by their own unexpected 
version of Bush v. Gore. Their own inability to ready themselves for a dispute 
of this kind helps explain why the nation was unprepared in 2000 when the actual 
Bush v. Gore occurred. Therefore, let us journey back to see what happened 
when the Founders faced this same kind of dispute. Let us do so in the hope that, 
by understanding the causes and consequences of their mistakes, we need not 
repeat them when the next major disputed election arises. 

I. Setting the Stage 

The New York gubernatorial election of 1792 was one of the first involving 
the two-party political competition that emerged in the aftermath of the 1787 
Constitutional Convention, despite the Framers' desires to avoid that 
development. 19 Madison famously had discussed the "mischiefs of faction" in the 
Federalist Papers 20 — and how to avoid a tyranny of "a majority] party" through 
the constitutional separation of powers. 21 But by 1792 Madison himself had 
come to embrace the idea that he was a member of one political party, the so- 
called Democratic-Republicans, set in opposition to another. 22 The name of that 
other party, the Federalists, ironically indicated Madison's rift with his Federalist 
Papers co-authors, Alexander Hamilton and John Jay. 

Madison's recognition of two-party competition as emergent by 1 792 was not 
the same as acceptance of two-party competition as a permanent feature of a 
healthy democracy. On the contrary, Madison believed that his Democratic- 
Republicans were the true guardians of the liberty won in the Revolution and 
protected by the Constitution. 23 Conversely, from his perspective, the other party 
(the Federalists) had betrayed the Revolution and the Constitution. Thus, as he 
saw it, the task of his Democratic-Republicans was not to trade positions with the 
Federalists as the "legitimate opposition" 24 during the period of electoral 
competition when the other party inevitably was in power. Rather, his side's task 
was to permanently destroy the Federalists as enemies of the Constitution and 
return the Republic to the original situation in which no two-party competition 
existed. 25 

The Federalists saw their rivals, the Democratic-Republicans, in much the 
same way. The Alien and Sedition Acts, which came within the first few years 



19. See generally HOFTSTADTER, supra note 13 (on the Founders' antipathy to party). 

20. The Federalist No. 10 (James Madison). 

2 1 . The Federalist No. 5 1 (James Madison). 

22. James Madison, Parties, in 4 Letters and Other Writings of James Madison 469 
(R. Worthington ed., 1 884); see generally ACKERMAN, supra note 1 3 ; HOFSTADTER, supra note 1 3 . 

23. Hofstadter, supra note 13, at 85. 

24. Mat 212. 

25. Id. at 84. 



28 INDIANA LAW REVIEW [Vol. 44:23 



of this new two-party rivalry, prove this point. The political opponents of the 
Federalists were, in their eyes, seditious enemies of the Republic and its new 
Constitution. 26 

This early attitude towards the emergence of two-party competition may help 
to explain why the actors in the 1792 New York drama behaved as they did. 
They were not ready for the intense political animosity that developed between 
the two sides, and when the animosity surfaced, there was no desire on either side 
to adopt institutional structures built on the premise that two-party competition 
would remain an ongoing feature of elections in their new constitutional 
democracy. Instead, both sides wanted to win elections, control the government, 
and perpetuate constitutional institutions that would be consistent with their idea 
of politics without party competition. 

In New York's gubernatorial election of 1792, the incumbent, George 
Clinton, was the candidate of the newly emerging Democratic-Republican party. 27 
His Federalist opponent was the illustrious John Jay, who was then serving as the 
first Chief Justice of the United States. Jay's willingness to leave that position 
to become New York's governor signals the relative importance of the two 
offices at the time — and also indicates that a fight over who won this 
governorship was comparable to the Founding Generation as a potential fight 
over the winner of a presidential election. 28 Winning the New York 
governorship, in other words, was a major prize (it was one of the largest and 
most economically important of the thirteen original states, and back then, of 
course, the states had much more power than the federal government). 
Accordingly, the politicians fought over it with every bit as much intensity as 
their successors would over 200 years later in Bush v. Gore. 

The dispute focused on the ballots cast in Otsego County, where 
Cooperstown (the home of the National Baseball Hall of Fame) is located. 29 If 
Otsego's ballots were counted, Jay would win by roughly 200 votes. 30 But if not, 
then Clinton would prevail by about 100 votes. 31 The specific problem involved 



26. Id. at 106-07. 

27. The main secondary texts on which I have relied are Jabez Delano Hammond, The 
History of Political Parties in the State of New York (Phinney 4th ed. 1850) (1844); Alan 
Taylor, William Cooper's Town (1995); Alfred F. Young, The Democratic Republicans 
of New York: The Origins ( 1 967); Carol Ruth Berkin, The Disputed 1 792 Gubernatorial Election 
in New York (1966) (unpublished M.A. thesis, Columbia University) (on file with Columbia 
University Archives). 

28. See Walter Stahr, John Jay: Founding Father 283 (2005). 

29. See John S. Jenkins, History of Political Parties pn the State of New- York 44 
(1846). 

30. Young, supra note 27, at 308. No one could know for sure what Jay's exact total would 
be, since the ballots had not been counted and would be destroyed without a count of them ever 
occurring. See infra text accompanying notes 53, 1 52. But given voting patterns in Otsego County 
at the time, both contemporary observers and subsequent historians have estimated with 
considerable confidence what the magnitude of Jay's victory would have been. 

31. Id. 



2010] THE FOUNDERS' BUSH V. GORE 29 



the delivery of the ballots from Otsego County to the secretary of state. New 
York's election law required the sheriff of each county to be the official 
responsible for this delivery. 

New York's legislature had enacted a statute for regulating elections in 1787, 
the year of the federal Constitution's adoption. This statute directed that after the 
polls had closed in each locality, the local election inspectors — what we would 
call poll workers or precinct officials — would "immediately" enclose and bind 
with tape the containers holding the ballots. 32 After affixing their seal to the 
containers, the inspectors were required to appoint one of themselves to deliver 
"without delay" the sealed containers to the county sheriff. 33 The statute, in turn, 
required the sheriff to collect all these containers and, without opening any of 
them, put them all together in one box and to deliver that box, closed and affixed 
with the sheriffs seal, "into the office of the Secretary of this State." 34 

The problem with the Otsego ballots is that the outgoing sheriffs term ended 
on February 18, 1792. 35 In fact, he resigned even earlier, on January 13. 36 His 
replacement, Benjamin Gilbert, was named on March 30. 37 But Gilbert did not 
receive his commission until May 1 1 . Thus, as was later determined by the 
official canvassing committee itself, Gilbert was not "qualified into the office of 
sheriff until then. 38 

On May 3, outgoing sheriff Richard Smith, acting as if he still possessed the 
powers of that office, had deputized another person to deliver the ballots on his 
behalf to the secretary of state. 39 But a whole month earlier, on April 3, Smith 
had been elected supervisor of Otsego Township, and under New York law a 
sheriff could hold no other office. Apparently, Smith was attempting to perform 
the functions of both offices at the same time when the election took place. In 
this time period, voting occurred over four days — from April 24 to April 28. On 
May 1, in his capacity as town supervisor, Smith ruled on challenges to the 
eligibility of some voters. But then Smith continued to perform the role of sheriff 
for the purpose of delivering the ballots to the secretary of state. As one historian 
has vividly put it, "in the most absurd touch, at the end of the polling Smith, 
acting as supervisor, sealed the Otsego Township ballot box for transfer to the 
county sheriff; becoming the sheriff, he received that ballot box from himself." 40 

Because of the legal defects with Smith's status as sheriff, Clinton supporters 
argued that the ballots from Otsego County had not been delivered to the 



32. Act of Feb. 13, 1787, 1787 N.Y. Laws 32. 

33. Id. 

34. Mat 33. 

35. Taylor, supra note 27, at 178. See infra Appendix for a timeline of the 1792 election 
dispute. 

36. Id. 

37. Id. 

38. Matthew L. Davis, Memoirs of Aaron Burr: With Miscellaneous Selections 
from His Correspondence 335 (1836). 

39. Taylor, supra note 27, at 178. 

40. Id. 



30 INDIANA LAW REVIEW [Vol. 44:23 



secretary of state in accordance with the requirements of the statute and thus 
should not be counted. They also complained that the ballots from one town 
within Otsego County, Cherry Valley, could not be counted because there was a 
dispute over which of two sets of returns from that town were the correct 
returns. 41 But this issue was something of a sideshow, as Jay's supporters were 
prepared to concede that those specific ballots should be discarded, but not the 
rest from Otsego. 42 There was no challenge to all of the other Otsego ballots for 
lack of the required seals. 43 The only problem was that the sheriffs seal on the 
whole box from the county was Smith's. Thus, the fight reverted to the main 
issue: was Smith entitled to act as the sheriff for purposes of delivering the 
ballots to the secretary of state — and, if not, must all of the Otsego ballots be 
discarded for that reason alone? 44 

As the controversy unfolded, the Clintonians suggested — but never proved 
or even offered any direct evidence — that Smith might have tampered with the 
ballots while they were in his possession. 45 They certainly showed beyond a 
shadow of a doubt that Smith was a Federalist sympathetic to Jay's candidacy and 
thus had a motive (as well as an opportunity) to commit some ballot tampering. 46 
But the Clintonians did not allege that Smith's partisan conflict of interest was 
itself a violation of law or even a factor relating to whether Smith had 
contravened the relevant electoral statute. 47 Rather, the Clintonians claimed 
simply that Smith was no longer Otsego's legal sheriff, and because of that 
technical defect alone, all of the county's ballots must be rejected as null and 
void. 48 

Under New York's election statute, the decision whether to count the 
disputed ballots was in the hands of a joint canvassing committee: six senators 
and six representatives from the state's legislature, with each group appointed by 
its own chamber. 49 The statute required this joint canvassing committee to meet 
at the office of the secretary of state to open the sealed boxes delivered from the 
county sheriffs and then canvass the votes contained within them. 50 The only 



41. Mat 178-80. 

42. See id. at 177-80. This account explains that there were in fact two competing sets of 
returns from the town of Cherry Valley. One had been properly sealed — the one that Smith 
believed to be the valid one. But he included the other set of returns, not sealed in the container 
from that town, so that the canvassers could make a final decision on the matter. Id. 

43. See Davis, supra note 38, at 335-38 (explaining that the canvassing committee described 
the Otsego ballots as "enclosed in a sufficient box" and did not dispute the right of a valid sheriff 
to appoint a deputy to deliver that box to the committee (emphasis added)). 

44. Id. 

45. See generally TAYLOR, supra note 27, at 1 79 (detailing the numerous opportunities Smith 
and other Federalists had to tamper with the ballot box). 

46. Id. at 179-80. 

47. Id. at 180. 

48. Id. 

49. Act of Feb. 13, 1787, 1787 N.Y. Laws 33. 

50. Id. 



2010] THE FOUNDERS' BUSH V. GORE 31 



explicit provision in the statute for not counting ballots was "if the number of 
ballots in any inclosure shall exceed the number of Electors contained on the poll 
lists in the same inclosure," in which case the committee "shall proceed to draw 
out and destroy unopened so many of the said ballots as shall amount to the 
excess, and shall proceed to canvass and estimate the residue." 51 But the statute 
also explicitly provided that "all questions which shall arise upon such canvass 
and estimate, or upon any of the proceedings therein, shall be determined 
according to the opinion of the major part of the [committee] . . . and their 
judgment and determination shall in all cases, be binding and conclusive." 52 The 
statute further required the committee, after deciding which candidate had won, 
"immediately" to "destroy" the "poll-books" and all other voting materials 
relating to the counting and canvassing of ballots. 53 Based on this clear-cut 
language, both sides to the controversy believed that the joint canvassing 
committee's decision would be final and irreversible in any other legal 
proceeding under the laws and constitution of New York. 54 



51. Id. 

52. Id. at 34. 

53. Id. 

54. In all of the historical research conducted for this project, there has emerged only one 
tantalizing reference that the Federalist attorneys considered going to court to overturn the 
canvassing committee's certification of the election's outcome. This reference comes in a single 
sentence of a letter of Josiah Ogden Hoffman, who at the time was a member of New York's 
legislature and who later became the state's attorney general. The letter to Peter Van Schaack, 
dated June 26, 1792, is held at the New York Historical Society, and a copy is on file with the 
author. It is also mentioned in a biography of Rufus King. See Robert Ernst, Rufus King: 
American Federalist 177 (1968) ("One [Federalist] suggested confidentially that, if a new 
election were not feasible, the legislature might order a quo warranto, which would leave the 
legality of Clinton's election in the hands of the judiciary."). The relevant passage of the letter 
reads, "If the legislature cannot order a new election[, i]s not in their power to order a quo warranto 
& thus leave the decision to our judges[?]" 

Quo warranto is an ancient writ used to try the legitimacy of an officeholder's title to an office. 
The most important early use of quo warranto in the United States to challenge an incumbent 
governor's reelection based on wrongdoing in the counting of ballots occurred in Wisconsin's 
gubernatorial election of 1855. See Attorney Gen. exrel. Bashford v. Barstow, 4 Wis. 567 (1855). 
This Wisconsin Supreme Court decision, which ordered the incumbent governor to vacate his office 
because he was not the rightful winner of the election, is considered the Marbury v. Madison of 
Wisconsin law. Joseph A. Ranney, Trusting Nothing to Providence: A History of 
Wisconsin's Legal System 79-80 (1999). In truth, however, it is a much more momentous 
decision than Marbury itself — which, after all, refused to issue an order to the federal executive in 
that case and instead claimed that the Court lacked the jurisdiction to do so. For a discussion of 
Bashford v. Barstow' s celebrated status in Wisconsin's history, see chapter 9 of John Bradley 
Winslow, The Story of a Great Court (1912). 

In light of Wisconsin's subsequent success with the use of quo warranto for its 1855 
gubernatorial election, it is thus intriguing to speculate what might have happened if the Federalists 
had similarly attempted to invoke this ancient writ in New York's disputed gubernatorial election 



32 INDIANA LAW REVIEW [Vol. 44:23 



Thus, it mattered immensely who constituted this joint canvassing committee. 
The members had been chosen in early April in advance of the election. The 
Democratic-Republicans controlled both houses of the state legislature at the 
time; therefore, they had the power to appoint a majority of canvassers from their 
party. 55 They exercised this power in a rather unusual way. In the state senate, 
a bipartisan compromise had resulted in the appointment of three canvassers from 
each party. 56 In the assembly, the Federalists thought they had secured a similar 
deal, but they got outmaneuvered. As a result, all six of the assembly's 
canvassers were Democratic-Republicans, for an overall majority of nine to 
three. 57 

Being savvy politicians, the Federalists saw the composition of the 
canvassing committee as a bad sign. Robert Troup, a Federalist attorney, played 
a leading role in advocating Jay's position before the committee and in the court 
of public opinion. 58 Troup had been Alexander Hamilton's roommate at 
Columbia (then called King's College) and had studied law under Jay's tutelage. 59 
One could consider Troup's role roughly comparable to the one that Ron Klain 
played for Al Gore during the legal fight over the 2000 presidential election. 



of 1792. The mere fact that Hoffman briefly contemplated the possibility is therefore significant. 
But it is important to understand that his suggestion of pursuing quo warranto, which comes in the 
form of a question, is entirely tentative. Indeed, the very next sentence of Hoffman's letter reveals, 
"This is quite a new idea in my mind [and I] have thrown it out for your consideration." The 
suggestion, moreover, seems to have been dropped almost as soon as it was made; no evidence has 
been uncovered to indicate that either Hoffman or anyone else pursued it further. 

It is worth noting as well that even Hoffman's brief suggestion contemplated legislative action 
as a precursor to seeking a writ of quo warranto in court. Given the exclusive jurisdiction of the 
canvassing committee under existing New York law, Hoffman was not suggesting that the 
Federalists could pursue a judicial remedy against the canvassing committee without some 
additional legislative intervention. In other words, Hoffman never seemed to have in mind the idea 
of seeking a writ of quo warranto based purely on protecting the fundamental constitutional right 
to suffrage, even though Federalists at the time were attacking the canvassing committee in 
constitutional terms. See infra notes 113, 116-18 and accompanying text. Instead, Hoffman 
apparently only thought of quo warranto as a kind of ancillary fix to a potential separation-of- 
powers problem; it would be necessary for the legislature to overturn a canvassing committee's 
certification of an election, but if the legislature could not itself issue the overruling order (because 
doing so would be in the nature of a judicial decree and therefore improper for the legislature to 
perform itself), perhaps the legislature by statute could empower the judiciary to issue an 
appropriate quo warranto decree. In any event, historically enticing as it is, Hoffman's tentative 
suggestion came to naught. 

55. Berkin, supra note 27. 

56. Taylor, supra note 27, at 177. 

57. Id. 

58. Robert Troup to Jay (May 6, 1 792), in 3 Correspondence and Public Papers of John 
Jay, 1782-1793, at 422-23 (Henry P. Johnston ed., 1891); id. at 424-27. 

59. Joseph Blunt, American Annual Register of Public Events for the Year 1831- 
32, at 389-90 (1833). 



2010] THE FOUNDERS' BUSH V. GORE 33 



After hearing the news concerning the partisan make-up of the canvassing 
committee, Troup wrote Jay on June 1 saying, "My hopes, however, are not very 
strong, considering the situation of that infamous party." 60 In another letter, 
Troup's fears were expressed even more vividly: "I confess that I have serious 
apprehensions that no motives whatever will be sufficiently powerful to restrain 
them from so flagrant an attack on the rights of an election." 61 Thus, there was 
already a fear of a party-line vote. 

Another Federalist attorney who helped to advocate Jay's position was James 
Kent. 62 At the time, Kent was a relatively junior member of the state assembly. 63 
He later would become chancellor of New York, the state's highest judicial 
officer, as well as the first professor of law at Columbia University. 64 Often 
called the "American Blackstone" because of his Commentaries on American 
Law modeled after Blackstone's treatment of English law, Kent is an important 
figure for understanding the Founding Generation's views on how a constitutional 
democracy should handle a disputed chief executive election, either for governor 
or president. 65 

Thus, it is significant that Kent, like Troup, focused on the partisan imbalance 
of the canvassing committee as the critical defect in the state's legal machinery 
for dealing with the dispute over the Otsego ballots. In a letter to his brother, he 
wrote: 

The Senate did as they ought to do; they chose three friends to Jay: 
Jones, Roosevelt, and Gansevoort; and three friends of Clinton: Geltson, 
Joshua Sands, and Tillotson. The Assembly chose six devoted 
Clintonians, to wit: Jonathan N. Havens, M. Smith, John D. Coe, Pierre 
Van Cortlandt, Junior, Daniel Graham, and David McCarty. This I deem 
to have been a corrupt thing in the Assembly. 66 

"Corrupt" is a strong word, but Kent meant it. He thought that the canvassing 
committee could not fairly and legitimately decide which of the two sides won 
the election unless the committee's membership was evenly balanced towards 
both sides: "These canvassers form a court of the highest importance, a court to 
decide on the validity of elections without appeal. They ought at least to have 



60. Robert Troup to Jay (June 10, 1792), supra note 58, at 430. 

6 1 . Letter from Robert Troup to John Jay (May 27, 1 792) (on file with Columbia University 
Library), available at http://wwwapp.cc.columbia.edu/ldpd/jay/item?mode=item&key=columbia. 
jay. 11219. Troup was confident in the merits of Jay's position and thus saw bias as the only 
obstacle to victory: "my mind, if I had confidence in the integrity of the canvassers, would be in 
a state of perfect tranquility." Id. 

62. William Kent, Memoirs and Letters of James Kent 43 (Da Capo Press 1970) 
(1898). 

63. Id at 37-42. 

64. See generally John Theodore Horton, James Kent: A Study in Conservatism, 
1763-1847 (1939) (a major scholarly biography of Kent). 

65. See id. 

66. Kent, supra note 62, at 44-45. 



34 INDIANA LAW REVIEW [Vol. 44:23 



been equally biased." 67 This passage in Kent's letter is one of the most important 
from the whole episode. It shows that a major participant in the controversy, who 
would later become one of the nation's foremost legal thinkers, recognized that 
the legitimacy of the dispute's outcome required the impartiality of the tribunal 
charged with resolving it. In this context, impartiality required more than sound 
judicial temperament. It required the physical manifestation of evenhandedness 
by making sure that the tribunal was composed of equal numbers from each of the 
two competing political parties. 

The phrase "equally biased" is perhaps infelicitous, but it is a personal letter, 
after all, and it unambiguously gets the point across. Kent recognized that one 
could not expect partisans to be able to put aside their partisan leanings in the 
context of a dispute over the outcome of a major statewide election like that for 
governor (or presidential electors). Therefore, to guard against the likelihood of 
partisans acting out of partisanship, one needed to put an equal number from each 
party on whatever "court" had jurisdiction to adjudicate this particular kind of 
dispute. 

Although Kent clearly recognized this important point — and that fact alone 
is of major significance — we shall see that neither he nor anyone else acted on 
this recognition. This fact, too, is of extreme importance. Why could the 
Founders not create an impartial tribunal, which Kent so clearly saw as essential 
to the legitimacy of an election's outcome? Even if they could not create this 
impartial tribunal in 1787, when they wrote the Constitution (and New York's 
election statute), why could they not do so after they lived through the disputed 
gubernatorial election of 1792? That question is a vexing and pressing one. 

II. The Legal Battle Before the Canvassing Committee 

The canvassing committee met from May 29 to June 12 of 1 792. 68 In the run- 
up to its deliberations, both sides conducted organized and energetic public 
relations campaigns over whether the committee should count the Otsego ballots. 
Although they had no television or Internet, they had a multitude of newspapers 
and pamphleteers, and both sides made maximum use of the available media to 
press their legal arguments on why they should prevail. 69 

A. The Use of Lawyers to Win a Disputed Election 
A common belief today is that, prior to the 2000 presidential election, 



67. Id. at 45. A recent experiment has tested a version of the evenly balanced tribunal that 
Kent contemplated. See Edward B. Foley, The McCain v. Obama Simulation: A Fair Tribunal for 
Disputed Presidential Elections, 13 N.Y.U. J. LEG. & Pub. POL. (forthcoming 2010). One 
significant feature of this experiment was that its three-member tribunal maintained its 
evenhandedness while avoiding the risk of deadlock by having the two members from opposite 
parties choose a neutral tiebreaker to join them. Kent's plea for an impartial tribunal, by contrast, 
did not specify any details on exactly how it should be structured. 

68. Taylor, supra note 27, at 1 80. 

69. See Berkin, supra note 27. 



2010] THE FOUNDERS' BUSH V. GORE 35 



political candidates did not enlist large teams of lawyers in an effort to litigate 
their way to victory. 70 But this current notion is an anachronistic fallacy. A 
review of previously close presidential elections — including 1884 and 1916, as 
well as the monumental legal fight over the outcome in 1876 — reveals that 
presidential candidates historically have been prepared to use attorneys to wage 
a legal battle over counting of ballots when their attorneys advise them that there 
are potentially winnable legal arguments to make. 71 Similarly, Clinton and Jay 
used attorneys in 1792 much the same way as did Bush and Gore in 2000. The 
1792 legal fight was confined to the jurisdiction of the canvassing committee 
because New York law unambiguously gave that body exclusive legal jurisdiction 
over the dispute, whereas Bush and Gore could litigate in multiple forums. But 
Jay's lawyers would have pursued their legal arguments in other venues, had they 
been available, and they explored ways to get around the exclusivity of the 
committee's jurisdiction. The use of lawyers to obtain electoral victory in both 
1792 and 2000 has more similarities than differences. 

Aaron Burr and Rufus King, the two U.S. senators from the state, each took 
the most publicly visible role for his candidate's side. 72 They were the James 
Baker and Warren Christopher of their day. Burr orchestrated Clinton's legal 
position, as Baker did two centuries later for Bush. 73 King was the illustrious 
statesman who added gravitas to Jay's position, foreshadowing the role that 
Christopher was supposed to play for Gore. 74 

As in 2000, Burr and King were but the pinnacles of the two respective 
armies of attorneys. Burr recruited an array of dignitaries to write legal 
memoranda in Clinton's defense. Most prominent among these was Edmund 
Randolph, then Attorney General of the United States. Randolph's role, thus, was 
a little like Ted Olson's in Bush v. Gore. 15 

In addition to King, Troup, and Kent, Jay's team included figures forgotten 



70. See generally Richard L. Hasen, The Untimely Death o/Bush v. Gore, 60 STAN. L. Rev. 
1 (2007) (discussing rise of election litigation since 2000). 

7 1 . Edward B. Foley, Close Presidential Elections: The 1 880s & 1916, Disputed Elections 
Seminar (Feb. 19, 2010) (unpublished manuscript) (on file with author). 

72. See generally Robert Troup to Jay (May 20, 1792), supra note 58, at 424-27; Davis, 
supra note 38, at 331-57 (detailing the roles of Burr and King). 

73. See DAVIS, supra note 38, at 333. 

From the moment that Colonel Burr was driven to interfere in the controversy, he took 
upon himself, almost exclusively, the management of the whole case on the side of the 

anti-federal party Full scope was allowed for the display of those great legal talents 

for which he was so pre-eminently distinguished. 
Id. (quoting Burr). 

74. See generally Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to 
Decide the 2000 Election (2001) (explaining that as events in Florida unfolded, Christopher 
ended up receding into the background, largely abandoning the effort to push Gore's position to 
Ron Klain and David Boies). 

75. Olson presented the oral argument for Bush in the Supreme Court and would later serve 
as Bush's Solicitor General. 



36 INDIANA LAW REVIEW [Vol. 44:23 



to most of us today, but who were prominent in their times — for example, 
William Lewis, who had been a federal judge in Philadelphia, 76 and John 
Trumbull of Connecticut, who would become a judge and had been a law partner 
of John Adams. 77 Alexander Hamilton also played a role in Jay's camp, although 
he was largely a behind-the-scenes political strategist. 

A smattering of names alone does not convey the scale of the legal effort in 
the Republic's first major disputed election. As historian Frank Monaghan wrote 
in his biography of Jay, "every lawyer" in New York City, as well as some from 
Philadelphia, "rummaged in his books for relevant arguments." 78 At the time, 
Troup himself wrote to Jay that while the canvassers were deliberating, "the 
lawyers, who are friendly to your interests, met, and we determined to address the 
public on the subject of the Otsego votes and give a formal opinion upon it as 
lawyers." 79 The effort was well-orchestrated; Troup boasted, "We have taken a 
bold and decisive part ... It threw the Clintonian lawyers also into a ferment; 
they went about the city to and from the place of canvassing like mad men." 80 

Thus, the energy that motivated each side to win the legal dispute easily 
matched that of the 2000 election. In one letter to Jay, Troup complained that 
"Brockholts and his virtuous colleagues are stuffing the news papers with 
dissertations on the subject." 81 But Troup added that their side was going to 
match the effort: "Mr. Harrison on our side has written a very ample & able 
refutation of all the arguments urged in these dissertations & the refutation will 
appear in tomorrow's paper." 82 It was, in other words, a paper-based version of 
the same legal tit-for-tat that occurred on CNN in 2000. 

B. Advocacy Based Not on Precedents, But Principles 

A full understanding of this combined legal and public relations battle would 
require a review of all, or at least many, of the newspapers and pamphlets that 
weighed in on the issue. In the section that follows, we will consider only the 
arguments of Burr and King as the leaders of each team. But beforehand one 
general observation is appropriate. It is striking how the lawyers of the time were 
so evidently fashioning new American arguments to address a new American 
issue, which was arising for the first time in the context of the post-revolutionary, 
non-monarchical democratic republic that our founding fathers created for us. As 



76. Biographical Directory of Federal Judges: Lewis, William, FED. JUDICIAL CTR., 
http://www.ijc.gov/servlet/nGetInfo?jid== 1 395&cid=999&ctype=na&instate=na (last visited Nov. 
12,2010). 

77. Trumbull, John, in 27 ENCYCLOPAEDIA BRITTANICA 324 ( 1 1 th ed. 1911). 

78. Frank Monaghan, John Jay 334 (1935). 

79. Robert Troup to Jay (June 10, 1792), supra note 58, at 429. 

80. Id. ; see also HORTON, supra note 64 (illustrating how Kent's papers also reveal the efforts 
that he, along with other Federalists lawyers, undertook to support Jay's legal position). 

8 1 . Letter from Robert Troup to John Jay (June 3, 1 792) (on file at the Columbia University 
Butler Library, Rare Book & Manuscript Division). 

82. Id. 



2010] THE FOUNDERS' BUSH V. GORE 37 



lawyers, they had been trained to read and cite English precedents, and they did 
so. But none of those precedents was really on point for the problem at hand: 
ballots in an election for the chief executive of a free democratic republic. New 
York was a sovereign state that had declared its independence from Great Britain. 
To be sure, New York had very recently joined with the twelve other free and 
independent states of America to form "a more perfect union" at the 
Constitutional Convention. But electing the governor of New York was not 
entirely unlike trying to elect the King of England — an impossibility, of course, 
and thus unprecedented. 

It is worth pausing to reflect on just how inexperienced Americans were in 
1792 with the phenomenon of a statewide election for governor. Only 
Connecticut and Rhode Island had elected governors during colonial times, and 
these had been weak chief executives largely beholden to each colony's 
legislature. 83 The other colonies had royally appointed governors. By 1 792, only 
New York and Massachusetts had strong governors comparable to the chief 
executive role of the President in the federal government. New York had been 
electing its governor every three years since 1 777, for a total of five elections 
before 1792, and each of those times Clinton had won decisively. 84 
Massachusetts first elected its governor in 1780, did so annually until 1920, and 
thus had a dozen gubernatorial elections before 1792, but it did not have a 
significant disputed gubernatorial election until 1806. Thus, New York had no 
relevant precedent for the Clinton- Jay battle. 

New Hampshire had begun electing its governor in 1784, Pennsylvania in 
1790, and Delaware in 1792. 85 That was it — a total of seven states with very 
limited experience with gubernatorial elections by the time of the Clinton- Jay 
dispute. The rest of the original thirteen states, mostly in the South, had 
legislatively appointed governors and would not elect them until well into the 
nineteenth century. 86 Thus, in the brief period between the Declaration of 
Independence in 1776 and the New York election of 1792, there was virtually 
nothing that the new nation had yet encountered to prepare it for the legal fight 
between Clinton and Jay before the canvassing committee. In 1782, there had 
been a dispute in an election for a single seat in Pennsylvania's Supreme 
Executive Council during the period before that state had a single-person chief 



83 . Joseph E. Kallenbach, The American Chief Executive: The Presidency and the 
Governorship 15 (1966). 

84. Michael J. Dubin, United States Gubernatorial Elections, 1776-1860: The 
Official Results by State and County 160 (2003). 

85. Mat 26, 146,215. 

86. Here are the years in which each of these states first elected their governors: 
Georgia 1825 

North Carolina 1836 
Maryland 1838 

New Jersey 1844 

Virginia 1851 

South Carolina 1 865 



38 INDIANA LAW REVIEW [Vol. 44:23 



executive. 87 William Lewis, who was from Pennsylvania, drew the rest of the Jay 
team's attention to that precedent. 88 But that precedent was of limited utility 
because it involved an election for a representative from a district to a multi- 
member body; therefore, it resembled a legislative election much more than the 
statewide gubernatorial election in New York. 

As for the collective experience of the new United States during the entire 
time that it consisted of British colonies, there was absolutely nothing for the 
lawyers to draw upon. A leading text on colonial elections flatly states, "The 
writer has found nothing which would tend to show how contests concerning the 
election of governor and other general officers were decided." 89 Thus, the 
lawyers for Clinton and Jay were without relevant precedents, and they 
recognized as much. Indeed, they knew that they would be creating the first 
major precedent for the new Republic on how to handle a disputed statewide 
election for chief executive. Moreover, they knew that this first important 
precedent would have relevance for presidential elections as well as gubernatorial 
ones. Reflecting on the significance of their situation in a letter to Hamilton, 
King worried that if the law proved inadequate to the task at hand, "what are we 
to expect from disputes that will arise in presidential elections?" 90 

Given the absence of relevant precedent, the attorneys for Clinton and Jay 
turned to fundamental principles to support each side's cause. They had invoked 
fundamental principles in the Declaration of Independence, the Constitution, the 
supporting Federalist Papers, and in all the constitutional promulgations in the 
states during the revolutionary era. But now, for the first time, they needed 
principles for how to handle a dispute over ballots that would be decisive in the 
democratic election of the governor of their state. What is particularly important 
to us is that they were unable to settle upon a single set of principles. Their 
dispute was not about how to apply an agreed-upon set of principles to a 
particular factual situation. Instead, the Clinton and Jay supporters divided over 
the first principles that should govern their dispute. Moreover, their disagreement 
over first principles is the beginning of a basic jurisprudential debate in the field 
of election law that continues to this day. Indeed, it is remarkable how much the 
basic arguments on both sides of the Clinton- Jay dispute are essentially the same 
as the basic arguments of the Bush-Gore battle, as well as the Coleman-Franken 
fight over the 2008 U.S. Senate election in Minnesota. 

C. The Arguments of Burr and King 

The opinions of Aaron Burr and Rufus King have stature not merely because 
of their authors' prominence (both being New York's U.S. senators at the time), 



87. The 1782 Pennsylvania dispute will be analyzed in the book that Steven Huefher and I 
are writing; additional research is necessary to develop a full understanding of that episode. 
8 8 . See infra note 201. 

89. CORTLANDT F. BISHOP, HISTORY OF ELECTIONS rN THE AMERICAN COLONIES 1 88 (Burt 

Franklin ed., 1893). 

90. See infra notes 184-86 and accompanying text. 



2010] THE FOUNDERS' BUSH V. GORE 39 



but because their opinions were officially sought by the canvassing committee. 
The canvassers did so because they were from the beginning divided amongst 
themselves on what to do about the dispute. 91 Thus, they specifically asked 
Senators Burr and King to address these questions: 

1 . Was Richard R. Smith the sheriff of the county of Otsego when he 
received and forwarded the ballots by his special deputy? 

2. If he was not sheriff, can the votes sent by him be legally canvassed? 

3. Can the joint committee canvass the votes [from the one town, Cherry 
Valley] when sent to them in two parcels, one contained in a box, and the 
other contained in a paper, or separate bundle? Or, 

4. Ought they to canvass those sealed in the box, and reject the others? 92 

In response to this request, Burr wrote that Richard Smith was definitely not a de 
jure sheriff because his exercising authority for that office had expired. 93 More 
importantly, Burr denied that Smith could be considered a de facto sheriff since 
he had openly repudiated his claim to the office and, more importantly, had 
openly assumed a different position (that of town supervisor) that was 
incompatible with service as sheriff. Burr claimed that there was no "urgent 
public necessity" or imperative that Smith act immediately as sheriff to send the 
ballots to the secretary of state. 94 The task could have waited for his 
replacement's commission to arrive, or efforts could have been made to move the 
transmission of that commission more hastily. 95 

In making this last point, Burr was alluding to political machinations in 
Otsego County that caused the delay in replacing Smith as sheriff. Smith was a 
Federalist allied with Jay and with William Cooper, the leading figure of Otsego 
County at the time, after whom Cooperstown is named. In a Pulitzer Prize- 
winning history of Cooper and his role in New York politics, historian Alan 
Taylor describes how Cooper connived with Smith and Jay's running mate for 
lieutenant governor, Stephen Van Rensselaer, to keep the commission out of the 
hands of the new appointee, Benjamin Gilbert. 96 

The power to appoint Smith's successor had been in the hands of a board 
controlled by Clinton as the incumbent governor. 97 Consequently, Gilbert, unlike 
Smith, was emphatically not a Federalist, as Clinton had rejected Federalist 
recommendations for Smith's successor (including Smith's own 



9 1 . Davis, supra note 38, at 332. 

92. Id. at 335. 

93. Id. at 340. 

94. Id. 

95. Id. ("Mr. Gilbert [the replacement] was qualified in season to have discharged the duty, 
and, for aught is shown, his attendance, if really desired, might have been procured still earlier."). 

96. Taylor, supra note 27, at 179. 

97. Id. at 167. 



40 INDIANA LAW REVIEW [Vol. 44:23 



recommendation). 98 Van Rensselaer was the only Federalist on the appointment 
board and managed to get hold of Gilbert's commission, saying that he would be 
responsible for its delivery to Cooper in Otsego County, to pass it on to Gilbert 
himself. But Van Rensselaer purposively held onto it so that Cooper could keep 
Smith as acting sheriff until after the delivery of Otsego's ballots to the secretary 
of state, for the specific purpose that the delivery of ballots would be in the hands 
of Smith, a Federalist." Indeed, Van Rensselaer wrote a letter to Cooper 
unabashedly expressing this plan: 

I delayed sending Sheriff Gilbert's commission till after the Election lest 
by some irregularity your Poll, which in all probability will turn the 
Election should be rejected. . . . Pray detain the Commission until Smith 
has deputed some faithful person to deliver the box [of ballots] to the 
Secretary [of state]. 100 

Although Van Rensselaer expressed fear that Gilbert, as an anti-Federalist, would 
use his power as sheriff to swing the election to Clinton, Van Rensselaer was 
essentially engaged in the same impropriety as Jay's running mate. By his own 
admission, he was the one using his official power to manipulate the vote- 
counting process to make sure that a loyal partisan controlled the ballots. 
Moreover, Smith kept the county's ballots for five days in a safe located in a store 
he co-owned with Cooper, the county boss and his Federalist ally. To make 
matters even worse, the person that Smith picked as his deputy to deliver the 
ballots, Leonard Goes, was a loyal affiliate of Van Rensselaer. Historian Alan 
Taylor, based on his thorough review of all the available evidence, concludes that 
in his judgment neither Cooper nor Smith actually stuffed the ballot box for Jay 
while it was in his hands. 101 (For whatever it might be worth, Smith submitted an 
affidavit swearing that he "did fairly, honestly, and impartially keep them in [his] 
possession.") 102 Instead, the conspiracy to delay Gilbert's commission seems 
motivated, as Van Rensselaer expressed, as a kind of insurance policy or 
preventative measure against letting the ballots fall into the other side's hands. 
In Taylor's words, "[i]t is very unlikely that Cooper, Smith, or Goes tampered 
with the ballots, given their confidence that Otsego had produced near unanimity 
for Jay. They had simply taken excessive precautions to safeguard the precious 
ballots that would, they anticipated, carry the election." 103 Maybe so, but it sure 
looked horrible. It would be as if during the 2000 presidential election, Jeb Bush 
or Katherine Harris had intentionally delayed the replacement of the custodian of 



98. Id. at 179. 

99. Id. 

100. Taylor, supra note 27, at 179. 

101. Id. 

102. Berkin, supra note 27, at 27. To refute the charge that Cooper had improper access to 
the ballots, Smith said that his office had been in Cooper's store for years with the implication that 
he really could not store them any other place and that there was nothing untoward about it. Id. at 
28. 

1 03. Taylor, supra note 27, at 1 79. 



2010] THE FOUNDERS' BUSH V. GORE 41 



the ballots in Palm Beach County to make sure that the ballots remained in loyal 
Republican hands. 

This background is important for evaluating Burr's argument to the 
canvassing committee that the formal defect in Smith's status as sheriff mattered 
and that there should be strict enforcement of the election code to assure the 
integrity of elections. "The direction of the law is positive," Burr wrote to 
support his conclusion that "the ballots delivered by the deputy of Mr. Smith 
cannot be legally canvassed." 104 Burr acknowledged that if the only defect were 
the ballots from Cherry Valley, they could be set aside, and the remainder could 
be counted. But the defect in Smith's status applied to all the ballots. In his 
view, it was not a mere formality. Rather, "considering the importance of the 
trust in regard of the care of the ballots and the extreme circumspection which is 
indicated in the law relative to elections," 105 the "positive" law must be followed. 
As such, there was no delivery of the Otsego ballots by either a de jure or de facto 
sheriff, and thus the situation was one in which the "sound discretion" of the 
canvassing committee "would require that the whole should be rejected." 106 
Although Burr hedged a bit by referring to the canvassing committee's authority 
to exercise "sound discretion" and "judgment," he had no fear that they would 
choose Jay over Clinton insofar as their hands were not completely tied one way 
or the other. Nonetheless, in stating his bottom-line conclusion, Burr suggested 
that the canvassing committee actually had no legal alternative to ruling in 
Clinton's favor on the ground that the entirety of the Otsego ballots "cannot be 
legally canvassed." 107 

In his opinion to the canvassing committee, Burr did not overtly refer to Van 
Rensselaer's role in causing a loyal Federalist without any lawful authority to be 
the one to deliver the Otsego ballots. Burr was the consummate crafty politician 
and presumably wanted to avoid making enemies unnecessarily. He undoubtedly 
believed that mentioning the relevant facts of what happened in Otsego County 
was unnecessary and that his literalist view of election law would resonate with 
those Clintonians on the canvassing committee who distrusted Van Rensselaer 
and his Federalist co-conspirators. 

By contrast, in advocating Jay's position before the canvassing committee, 
King premised his argument on the assumption that there had been no allegation 
of impropriety with respect to the ballots themselves, nor any assertion of ballot 
tampering while they were in Smith's custody and during their delivery to the 
secretary of state. 108 Accordingly, King emphasized that the voters should not 



104. Davis, supra note 38, at 340. 

105. Id. at 341. 

106. Id. 

107. Mat 340. 

1 08. A copy of King's statement to the canvassers is also contained in Davis, supra note 38, 
at 336. An original version of both statements can be found in An Impartial Statement of the 
Controversy Respecting the Decision of the Late Committee of Canvassers (1792). 
Despite its title, the "impartiality" of this pamphlet can reasonably be questioned, as it is understood 
that Burr orchestrated the particular selection of opinions in an effort to influence public opinion 



42 INDIANA LAW REVIEW [Vol. 44:23 



suffer from the deficiencies in Smith's lawful status as sheriff. King thought that 
under a provision of the New York constitution that permitted sheriffs to hold 
office for up to four years, it could be argued that Smith was de jure sheriff until 
his successor actually replaced him, which had not yet occurred at the time the 
ballots were transmitted. 109 

But King placed more emphasis on his contention that Smith was entitled to 
be considered de facto sheriff because by deputizing Leonard Goes, he was 
publicly continuing to act as sheriff "under colour of a regular appointment." 110 
He bolstered his de facto argument by underscoring the necessity of protecting 
the rights of the voters. As King put it, Smith's actions "ought to be deemed 
valid" because considering them so is "necessary to the carrying into effect the 
rights of suffrage of the citizens of that county." 111 Elsewhere in his opinion, 
King was even more emphatic in stating that the interest of the voters should be 
paramount in the interpretation and enforcement of the state's election laws. He 
insisted that "[t]he election law is intended to render effectual the constitutional 
right of suffrage; it should therefore be construed liberally, and the means should 
be in subordination to th[at] end." 112 Neither David Boies nor any of Gore's other 
lawyers could have said it better. 

Jay's lawyers repeated this basic principle throughout their public campaign. 
Here is how one missive signed by seven New York lawyers put it: "The law on 
every occasion should be liberally expounded to protect and enforce the rights of 
suffrage as constituting the basis on which the freedom of our government 
depends." 113 Jay's team also repeatedly complained that the other side was 
resting on a mere technicality, insofar as Burr and Clinton's other allies expressed 



to his side of the case. See Young, supra note 27, at 3 18. 

109. Davis, supra note 38, at 336. 

110. Mat 337. 

111. Id. (emphasis in original). 

112. Id. at 338. 

113. This statement appears in a letter signed by the seven lawyers and reprinted in An 
Impartial Statement, supra note 108, at 24. The same seven lawyers, however, published a 
much fuller account of their position. Reasons in Support of an Opinion Offered to the 
Public Respecting the Votes of Otsego County (1 792). This pamphlet elaborated: 

It [s]hould have been sufficient to have resorted to the right of suffrage as the 
fundamental principle of our constitution. It might undoubtedly have been argued with 
great force, that every act of the legislature which directly or indirectly infringes so 
essential a right, must be considered a nullity; that every act of the legislature which 
directs the mode of exercising this right, must be liberally expounded; that, for the 
preservation of it, wherever the positive law have become impracticable from 
unforeseen accidents, the people are not to suffer, their votes are to be received, and the 
first offices of the state to be conferred by the will of the majority, the only legitimate 
source of power. 

For these principles we entertain the highest respect. They are derived from an 
authority superior to any in our books of reports— the authority of the constitution. 
Id. at 4 (emphases in original). 



2010] THE FOUNDERS' BUSH V. GORE 43 



only the argument that Smith's defective status as sheriff was enough to toss out 
the ballots (and did not raise the underlying facts surrounding Van Rensselaer's 
impropriety). "A law quibble" is what the Federalists called the Clintonian 
position. 114 

D. The Great Debate Between Strict and Lenient Enforcement 

From an analysis of the opinions that Burr and King delivered to the 
canvassing committee, it is easy to see that each side quickly staked out opposing 
positions on what would become the basic jurisprudential debate in vote-counting 
disputes throughout the history of election law in the United States. The Clinton 
team took the view that the New York statute must be enforced strictly in order 
to protect the integrity of the electoral process. The Jay team countered that the 
election statute should be enforced leniently to safeguard the right to vote. 

One can see this great jurisprudential debate arising in 1792 even more 
clearly if one examines not just the opinions of Burr and King, but also other 
especially lucid expressions of the argument from each side. On Clinton's side, 
there was the opinion of Edmund Randolph, the first Attorney General of the 
United States. He made Burr's integrity point much more forcefully: 

The very sacredness of the right of suffrage exacts a degree of rigor, in 
insisting on those rules which are designed to be the outworks of its 
defence. In proportion to its magnitude, is it in the hazard of being 
abused, since the temptation is more violent. With this belief the 
legislature called upon the sheriff officially to be the fiduciary of the 
ballots. Through this pure channel, delineated by law, ought they, 
therefore, to come — Otherwise, subtilty [sic] and refinement may, by 
degrees, reduce this security against fraud to a mere nullity. 115 

Randolph, like Jay's supporters, invoked the right to vote. Indeed, he called it 
sacred. But he claimed that its protection requires the rigorous enforcement of 
the rules for counting and canvassing these votes, including the reporting of local 
results to the relevant statewide office. Randolph explicitly raised the specter of 
potential "fraud" in this vote-counting process. Like Burr, however, he did not 
need to allege specifically that fraud had occurred in Otsego County. Instead, 
Randolph made the prophylactic point that strict enforcement of these vote- 
counting rules as a general practice reduces the risk of an election tainted by 
fraud. 

Now contrast Randolph's forceful defense of electoral integrity with a legal 
opinion supporting Jay's position written by John Trumbull, John Adams's 
former law partner, who at the time was serving in Connecticut's legislature: 

The existence of all representative republics is founded on the rights of 



1 14. See infra note 227. Kent also used the phrase "law quibbles" to refer to the Clintonian 
position. See Letter from James Kent to Moss Kent, Jr. (June 15, 1792) (PDF of original 
manuscript on file with author). 

115. An Impartial Statement, supra note 108, at 37 (emphasis in original). 



44 INDIANA LAW REVIEW [Vol. 44:23 



suffrage. This right is fully established in the Constitution of the State 
of New-York. The Legislature have undoubtedly authority to pass laws 
to guard this right, but not to destroy it; to regulate, but not to prevent the 
exercise of it; to point out the proper mode in which returns shall be 
made; but not to devise modes that may be impracticable. 
Had the Legislature directly enacted that the votes of Otsego [and the 
other two] Counties should not be canvassed, every person would 
consider this act unconstitutional and void. 

What the Legislature cannot do by direct statute, they certainly cannot do 
by construction and implication. 

If it therefore becomes impossible in any case, that the statute relative to 
the return of ballots should literally be complied with, I should consider 
the law in that instance void; and am of the opinion that in such case all 
votes fairly given and honestly returned, ought to be canvassed; for the 
rights of the free electors ought always to be preferred to the mere forms 
of law. 116 

Trumbull went on to argue, "Had the Sheriff of any County died before the day 
of the Election, and no new Sheriff be appointed before the day of return, in 
which case the County would clearly be without a Sheriff, I should consider a 
return by the [poll] Inspectors as valid." 117 

John Trumbull said that the Otsego ballots should be considered in the same 
category; therefore, the expiration of Smith's commission should not interfere 
with their being counted. 118 What is particularly striking about Trumbull's 
argument is that he considered the fundamental right to vote not merely an 
abstract philosophical idea, but a constitutional requirement that is enforceable 
as constitutional law which supersedes and voids contrary statutory law (in the 
way that Marbury v. Madison would articulate a decade later). 119 Furthermore, 
Trumbull considered the constitutional status of the right to vote as requiring 
flexible enforcement of statutory rules regarding the voting process when 
flexibility is necessary to secure the underlying fundamental constitutional right. 
Thus, from the same basic right to vote in a constitutional republic, Trumbull 



1 1 6. Trumbull's statement is contained in a Federalist pamphlet prepared to counter the one 
orchestrated by Burr. This Federalist counter-pamphlet was somewhat ironically entitled An 
Appendix to the Impartial Statement of the Controversy Respecting the Decision of the 
Late Committee of Canvassers (1792). This passage from Trumbull is on page 12 of the 
pamphlet. 

1 1 7. Id. The separate pamphlet of the seven New York lawyers made a similar point: "If the 
sheriff should die, or refuse to receive the ballots, the people . . . ought not to be without a remedy." 
Reasons in Support, supra note 1 13, at 5. 

118. Id. at 13. 

119. See Marbury v. Madison, 5 U.S. 137 (1803). This same point can be made about the 
statement of the seven New York lawyers, who were emphatic in saying that "the right of suffrage" 
comes from the constitution and thus supersedes any contrary statutory law. See REASONS IN 
Support, supra note 1 13, at 4. 



2010] THE FOUNDERS' BUSH V. GORE 45 



reasoned to exactly the opposite conclusion from Randolph regarding strict versus 
lenient enforcement of the statutory rule on delivery of ballots from county to 
secretary of state. 

The debate between Randolph and Trumbull did not concern facts on the 
ground in Otsego County or even the details about the nature of the particular 
election statute. Instead, their debate was much more fundamental. It was simply 
whether, as a matter of general principle, it is better to protect the right of free 
citizens to participate in electoral democracy by strict or lenient enforcement of 
statutes that regulate the counting and canvassing of ballots. 

This elemental debate between Randolph and Trumbull is the same as the one 
that occurred between Bush and Gore in 2000 and between the candidates in 
Minnesota's 2008 U.S. Senate election — as well as any number of other examples 
throughout U.S. history. 120 Bush's team, of course, was the one to argue for strict 
enforcement in 2000. For example, the Bush team argued that "hanging chads" 
should not count when the rules required voters to remove the chads completely. 
Conversely, Gore's team called for the counting of these hanging chads in order 
to protect the voters from disenfranchisement. In the lawsuit over Minnesota's 
2008 U.S. Senate election, it was Franken who argued for strict enforcement of 
the statutes concerning the submission of absentee ballots, whereas Coleman 
urged lenient enforcement and disregarding of "mere technicalities" so as to avoid 
the disenfranchisement of well-intentioned and otherwise eligible absentee 
voters. 121 

Thus, the terrain on which this basic jurisprudential battle is fought changes 
from one election to another. In 2000, it was chads on punch-card ballots. In 
2008, it was information that voters were required to fill out on the outer 
envelopes when submitting absentee ballots. 122 And in 1792, it was the rules for 
transmitting ballots from each county to the secretary of state. In each instance, 
the circumstances are somewhat different with potential policy implications. In 
the case of the hanging chads, the voters were arguably in a position to protect 
themselves, as Justice O'Connor observed at the oral argument in Bush v. Gore. 123 



120. In 2010, this same basic debate is playing out again in Alaska in the dispute over 
misspelled write-in ballots for Lisa Murkowski. Her opponent, Joe Miller, advocates strict 
enforcement of the state statute that requires voters to complete write-in names as they appear in 
the declaration of candidacy. Murkowski, conversely, seeks a more lenient implementation of the 
statutory rule in order to avoid disenfranchising voters who undoubtedly intended to cast their ballot 
for her. See Kim Murphy, Alaska Senate Race Could Hinge on a Legal Wrangle, L.A. TIMES (Nov. 
11, 2010), http://www.latimes.com/news/nationworld/nation/la-na-alaska-senate- 
20101 112,0,1891443.story. 

121. Edward B. Foley, How Fair Can Be Faster — and Other Lessons of Coleman v. Franken 
(2010) (unpublished manuscript) (on file with author). 

1 22. In the latest incarnation of this basic dispute, unfolding as this article is being completed, 
the particular subject matter is the spelling of a write-in candidate's name. See Becky Bohrer, 
Murkowski Camp Cries Foul in Alaska Ballot Count, ASSOCIATED PRESS (Nov. 11, 2010), 
http://www.chron.com/disp/story.mpl/ap/nation/7290902.html. 

123. Transcript of Oral Argument at 57, Bush v. Gore, 531 U.S. 98 (2000) (No. 00-949). 



46 INDIANA LAW REVIEW [Vol. 44:23 



In the 2008 dispute over Minnesota's absentee ballots, the situation was mixed 
and complicated. In some instances, the voters themselves could have filled out 
the envelopes properly, but other voters received the wrong envelopes from their 
local election officials and thus could not help but submit their absentee ballots 
incorrectly. 124 In 1792, none of the voters in Otsego County were in a position 
to protect themselves from the fact that Smith was no longer the legal sheriff. 

But the relative "culpability" of the voters is only one factor to consider in the 
debate between strict and lenient enforcement of vote-counting statutes. For 
example, ballot boxes with broken or missing seals might be entirely the fault of 
election officials and not innocent voters. And yet one might take the position (as 
some courts historically have) that the ballots in these tampered boxed cannot be 
counted, even though discarding them obviously disenfranchises the innocent 
voters in that particular election. It is a question of balancing the risk to the 
integrity of the election with the right to vote. In some contexts, the balance 
might weigh in favor of strict enforcement of the relevant election statute — as the 
Clintonians were essentially arguing in 1792. 

Despite the difference in particular contexts between 1792 and 2000 (or 
2008), it is remarkable how little the jurisprudential debate has changed over two 
centuries. 125 One can understand that when this debate emerged in 1 792, it might 
have been conducted without nuance or special sensitivity to the particular 
conditions relevant to weighing the balance between integrity-protection and 
disenfranchisement-avoidance. After all, in 1792 the jurisprudence of American 
election law was in its earliest stage of development. But by the time the same 
debate occurred in the twenty-first century, considerable sophistication and 
refinement should have been expected, such that the discussion of whether to 
count hanging chads would be considered distinguishable from the problem of 
flaws in ballot-box delivery. Yet there was surprisingly little advancement in the 
argument between strict and lenient enforcement from 1792 to 2000 (or 2008). 
What the lawyers for Bush and Gore said about protecting the integrity of the 
electoral process or avoiding the disenfranchisement of voters was the same as 
what Randolph and Trumbull said in 1792. 126 The twenty- first century debate 
between strict and lenient enforcement remains largely generic rather than 
context-specific and seems to be stuck in essentially the same basic place that it 
was when the debate began in 1792. The fact that our nation's legal system has 
not been able to advance the debate beyond where it began, over two hundred 
years ago, is itself significant. 127 



1 24. See Foley, supra note 121. In the Alaska write-in situation, by contrast, the voters could 
have protected themselves by spelling "Murkowski" correctly (a task arguably easier than even 
dislodging chads from punch-card ballots when the machines were already clogged with chads from 
previous ballots). 

1 25. For an effort to move the debate forward, see Richard L. Hasen, The Democracy Canon, 
62 Stan. L. Rev. 69 (2009). 

126. For a summary of the arguments in 2000, see TOOBIN, supra note 74. 

127. In recognition of this problem, the American Law Institute has recently authorized a 
project to examine whether improvement might be made in this regard. The author of this article 



2010] THE FOUNDERS' BUSH V. GORE 47 



E. The Canvassing Committee 's Decision 

The canvassing committee voted 7-4 in favor of excluding the Otsego ballots 
and thus certified Clinton as the winner. 128 (One member of the committee 
inexplicably was absent.) This vote, as Troup had feared, was essentially along 
party lines. The Federalist position picked up one more vote than the "three 
friends to Jay" that Kent had identified. 129 Interestingly, the fourth pro- Jay vote 
came from state senator Joshua Sands, who would later run for Congress as a 
Federalist. 130 Therefore, if Sands actually was more Federalist than Clintonian 
when he cast his canvassing committee vote, the 7-4 split could be viewed as 
100% partisan in its division. Even so, the five "devoted Clintonians" from the 
assembly, together with their two faithful partisans from the Senate, controlled 
the canvassing committee's outcome. 

The committee's majority and dissenters issued written opinions in support 
of their respective positions. 131 Not surprisingly, these opinions echoed the 
arguments made to the committee by each side's lawyers. Like judges embracing 
arguments of opposing briefs, the committee's majority adopted the "integrity" 
position advocated by Burr and Randolph, whereas the dissenters relied on the 
same "right to vote" argument as King and Trumbull. 

The majority explained its position as to why the statute regarding delivery 
of the ballots to the secretary of state by a county sheriff must be strictly enforced 
by refusing to count ballots transmitted in violation of this statutory requirement. 
Otherwise, "a provision intended as security against impositions would be an 
engine to promote them." 132 They could not accept the contrary proposition, 
which they believed would obligate them to "canvass and estimate votes, 
however fraudulently obtained" by any person claiming to be sheriff "though, it 
[s]hould be evident to them, at the [s]ame time, that he was not the sheriff " m 

In raising the possibility of fraud, the majority opinion — in sharp contrast to 
the submissions by Burr and Randolph on behalf of Clinton — explicitly invoked 
the ugly facts in Otsego County surrounding the delay of Gilbert's commission 
to replace Smith as sheriff. Stating that they had learned the relevant facts from 
the secretary of state, the majority emphasized that Smith had stored the ballot 



has agreed to serve as the reporter for this new ALI project. 

128. Taylor, supra note 27, at 1 80. 

129. See Kent, supra note 62. The 7-4 vote can be seen from the original opinions issued by 
the canvassers. See also Young, supra note 27, at 309-10 (describing the 7-4 vote and citing the 
original documents). 

1 30. The Papers of Alexander Hamilton, Volume XXV: July 1 800-April 1 802, at 6 1 1 
n.l (Harold C. Syrett ed., 1977). 

131. See An Impartial Statement, supra note 108, at 1 1-12 (official order certifying the 
election for Clinton), 12-14 (dissenting opinions of Jones et al.), 14-15 (dissent of Joshua Sands), 
15-20 (majority opinion). 

132. Id. at 17. 

133. Id. (emphasis in original). 



48 INDIANA LAW REVIEW [Vol. 44:23 



box in Cooper's house at the same time Cooper was holding onto Gilbert's 
commission. "It is also to be fairly inferred," the majority reasoned, "that had 
proper measures been taken to give notice to Mr. Gilbert, he would forthwith 
have qualified [and] undertaken the execution of the office." 134 Given the risk of 
"mischiefs" (ballot tampering by Smith and Copper), the majority asserted, "[i]t 
did not seem possible ... by any principle of law, by any latitude of construction, 
to canvass and estimate the ballots contained in the box thus circumstanced." 135 
Thus, in explaining its view as to why protecting the integrity of the electoral 
process required strict enforcement of the statute, the majority opinion made the 
point concretely, whereas Burr and Randolph had not. 

The majority again invoked the factual circumstances of the Otsego ballots 
in summing up its conclusion not to count them: 

These facts with other suggestions of unfair practices, rendered the 
conduct of the Otsego election justly liable to suspicion; and the 
committee were constrained to conclude, that the usurpation of authority, 
by Richard R. Smith, was wanton and unnecessary, and proceeded from 
no motive connected with the preservation of the rights of the people, or 
the freedom and purity of elections . ue 

The majority finished by declaring that "freedom of elections, and the security 
against frauds" were "general principles" that applied to this situation, 
"compelling] them to reject the votes." 137 Thus, members of the committee 
majority, were entirely aware that they were relying on what they saw as 
fundamental principles in reaching this first important decision, thus establishing 
the first major American precedent concerning the resolution of a disputed 
statewide election. 

The dissenters on the canvassing committee also relied on their perception of 
first principles. There were two dissenting opinions — one by the "three friends 
to Jay" identified by Kent and the other by Joshua Sands. 138 Both dissents made 
the same substantive point, ultimately invoking, as King and Trumbull did, the 
fundamental right to vote as the reason for lenient enforcement of statutory rules 
regulating the counting of ballots. The main dissent argued, "in all doubtful 
cases, the committee ought, in our opinion, to decide in favour of votes given by 
citizens, lest by too nice and critical an exposition of the law, the rights of 
suffrage be rendered nugatory." 139 Similarly, Sands found that "in all doubtful 
cases, I conceive the committee ought to decide in favour of the votes given by 
the citizens." 140 



134. Id. at 19. 

135. Id. (emphasis in original). 

136. Id. (emphasis in original). 

137. Id. at 20. 

138. Perhaps the fact that Sands wrote separately indicates that he had not yet entirely aligned 
himself with the Federalist party. 

139. Randolph, supra note 108, at 13. 

140. Id. at 15. 



2010] THE FOUNDERS' BUSH V. GORE 49 



The two dissents also argued that Smith could be considered at least a de 
facto, if not de jure, sheriff for the purpose of the statutory rule that the sheriff 
transmit the ballots to the secretary of state. Otherwise, as the main dissent put 
it, the county would have been without any person to act in that office, and that 
was a proposition "too mischievous to be established by a doubtful construction 
of law." 141 Neither dissent, however, addressed any of the distasteful facts 
surrounding the delay of Gilbert's commission or the storing of the ballots at 
Cooper's house, upon which the majority opinion so emphatically relied in 
suggesting the possibility of fraud. Rather, the dissents were content to repeat 
that at most it was a "doubtful case," implying that neither the majority nor 
anyone else had come forth with any direct evidence of ballot tampering by the 
Federalists in Otsego County. 142 Classifying it as a "doubtful case," the dissents 
then fell back upon the basic principle that the enforcement of election laws 
should err on the side of counting, rather than discarding, the ballots of eligible 
voters. 143 

In hindsight, it seems fair to say that there were powerful arguments on both 
sides of the divided canvassing committee. Jabez Hammond, an early and 
influential historian in New York, reflected on the committee's decision sixty 
years after it occurred. Hammond himself was a Democrat who served both as 
a state judge and member of Congress. 144 Still, known to be scrupulously 
nonpartisan in his historical judgments, Hammond saw the dissenters on the 
canvassing committee as having the better of the argument: 

To my mind, the reasons assigned by Mr. King and by the minority of 
the committee in their protest, are strong and convincing. . . . The right 
of suffrage is a sacred and invaluable right which belongs to the elector, 
and of which he cannot be divested. . . . And he ought not and cannot be 
deprived of the effect of it, either by the non-feasance or misfeasance of 
the agent to whom the law commits the custody and care of his ballot. 145 

Hammond's history, however, does not directly address the concern that fraud 
might have tainted the Otsego ballots. Subsequent historians have been more 
ambivalent in their assessment. Although Alan Taylor, in his prizewinning 
account of Cooperstown, reached the conclusion that the Federalists probably did 
not manipulate the counting of votes from Otsego, he acknowledged that their 
unsavory actions raised a legitimate concern that they might have. 146 Likewise, 



141. Mat 13. 

142. Id. at 13-15. 

143. Id. 

144. He also happened to live in Otsego County, though well after 1792. Born in 
Massachusetts, and only fourteen at the time of the disputed Clinton-Jay election, Hammond 
practiced law in Vermont before he eventually settled in New York. See Hammond, Jabez Delno 
[sic], Biographical directory of the U.S. Congress, http://bioguide.congress.gov/scripts/ 
biodisplay.pl?index=H000127 (last visited Nov. 12, 2010). 

145. Hammond, supra note 27, at 68. 

146. Taylor, supra note 27, at 179. 



50 INDIANA LAW REVIEW [Vol. 44:23 



Alfred Young has observed that the Republicans had a valid point insofar as they 
believed that "elections laws had to be strictly observed lest precedents dangerous 
to free elections be established." 147 

Even if there were meritorious arguments on both sides of the case, one can 
never know the extent to which the members of the canvassing committee were 
motivated by the merits of the position they took or by the simple fact that taking 
that position favored the candidate whom they wanted to win for partisan 
reasons. 148 It is the same problem that plagued the 5-4 Supreme Court decision 
in Bush v. Gore. One could claim that all the Justices, like all the canvassing 
committee members, were motivated by a sincere effort to reach the right 
decision as a matter of law, without regard to partisan consideration. But the 
coincidence between the Justices' respective views of the law and their respective 
partisan leanings inevitably made the 5-4 split suspicious in 2000, just as the 7-4 
split in 1792 was suspect for equivalent reasons. 

There would have been a way to avoid this problem in 1 792, as James Kent 
understood. If the canvassing committee had been constructed to be equally 
balanced between the two sides of the controversy, then its decision would have 
been nonpartisan whichever way it ultimately fell. A genuinely neutral and 
impartial decisionmaker could embrace the merits of either the "integrity" or 
"right to vote" position without the decision being inevitably tainted with the 
suspicion that it was the product of bias rather than merit. But New York in 1 792 
did not have this kind of evenhanded and impartial tribunal for its disputed 
gubernatorial election, and neither would the United States in 2000 for its 
presidential election. 

III. The Political Maelstrom that Followed 

After the canvassing committee announced its decision, there was great 
public agitation, including threats of violence. This talk of the "bayonet," which 
is how Alexander Hamilton described the commotion, 149 was in keeping with the 
character of this generation of revolutionaries who were not afraid of extralegal 
means to secure their fundamental right to a representative democracy. 150 



147. Young, supra note 27, at 305. 

148. One historian of New York politics, writing in 1906, was particularly harsh in attributing 
partisanship as the motivating force behind the canvassing committee's decision: "This was the 
first vicious partisan precedent established in the Empire State. It has had many successors . . . but 
none bolder and more harmful, or ruder and more outrageously wrong." DeAlva Stanwood 
Alexander, 1 A Political History of the State of New York 56 (Ira J. Friedman, Inc. 1 969) 
(1909). This historian saw nothing of consequence in Cooper's conduct in Otsego: "No ballots 
were missing, no seals were broken, nor had their delivery been delayed for a moment." Id. at 57. 
Alexander, however, is hardly the only historian to take Jay's side of the controversy. See, e.g., 
Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln 52 (2005) 
(characterizing Clinton's victory over Jay as resulting "only because of flagrant voter fraud"). 

149. See infra note 172 and accompanying text. 

1 50. The Declaration of Independence, of course, most famously asserts the "right of the 



2010] THE FOUNDERS' BUSH V. GORE 51 



Moreover, it was not just the revolt against England that was revolutionary. The 
Constitution itself was an unauthorized break from the legal regime of the 
Articles of Confederation. As such, the great question for Jay and his supporters 
was whether to take to the streets and demand a new constitutional convention for 
the state of New York that would undo what they viewed as the partisan atrocity 
committed by the canvassing committee. 151 

A. Public Agitation Against the Canvassing Committee 's Decision 

As upset as Jay's supporters were about the canvassing committee's decision 
itself, they were perhaps even more enraged by the fact that the committee burned 
the Otsego ballots as soon as it decided not to count them. To be sure, as we have 
seen, the committee was entirely within its rights under the relevant statute to do 
so. Still, the Federalists were outraged that they could never prove exactly how 
many votes Jay would have won had he not been robbed of what they viewed as 
his rightful votes from Otsego County. 152 One Jay supporter wrote on the day of 
the canvassing committee's decision, "We have as it were two chief 
magistrates — one, the governor, by the voice of God, and the people, and another 
the governor of Mr. Burr and the canvassers." 153 This author added that "[the 
canvassers] ought to be impeached." 154 Also on the day of the canvassing 
committee's decision, Jay's wife wrote to him, "There is such a ferment in the 



People to alter or abolish" government, through the use of force if necessary, if government has 
wrongfully "become destructive" of the "unalienable Rights to Life, Liberty, and the pursuit of 
Happiness." 

151. It is noteworthy that Jay and his supporters did not attempt to go to court to undo the 
determination of the canvassing committee. To be sure, that avenue seemed unequivocally closed 
by the statute, which explicitly said that the canvassing committee's "judgment and determination 
shall in all cases be binding and conclusive." 1787 N.Y. Laws 34. But today, were there a similar 
statute that purported to block judicial review of the vote-counting process, lawyers nonetheless 
would seriously consider possible arguments that might offer an end-run around even the most 
clear-cut statutory preclusion. As we know from the current habeas cases involving the 
Guantanamo detainees, if a question of constitutional rights is truly fundamental, there is almost 
always a way for a court to find some basis for jurisdiction to safeguard those fundamental rights. 
See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008) (invalidating Congress's suspension of habeas 
corpus). To be sure, this is not to suggest that the integrity of the result of a gubernatorial (or even 
presidential) election is as important as preventing torture and indefinite detention in solitary 
confinement. Judgments reasonably may vary as to the hierarchy of "fundamental ity" among 
various fundamental constitutional rights. Nevertheless, today's election lawyers certainly would 
explore the possibility of pursuing so-called "extraordinary writs" as a means of judicial relief 
before concluding that it would be a waste of time and effort to do so. From what one can discern 
from the historical record regarding the election of 1792, apart from a tentative suggestion in a 
single letter, supra note 54, Jay and his supporters never considered pursuing a judicial option. 

152. See, e.g., N.Y. Daily Adver., infra note 244 (Kent's speech). 

153. Berkin, supra note 27, at 24 (emphasis in original). 

154. Id. 



52 INDIANA LAW REVIEW [Vol. 44:23 



City that it is difficult to say what will be the consequences." 155 Hammond, in his 
early history of New York politics, reflected that "the state seemed menaced with 
the ascendancy of anarchy and utter confusion." 156 

There were also marches, including those by local militia supporting Clinton. 
Cooper "hinted at armed rebellion," 157 declaring that "a Face of Flint ought to be 
set against the insult." 158 Ebenezer Foote, another Federalist, argued even more 
strongly that "Clinton must quit the Chair, or blood must and will be shed — and 
if no innocent blood was to flow, I would not care how soon it began to run." 159 

Some blood did flow. There were fist fights and club battles between Jay and 
Clinton supporters at local taverns. At one skirmish, pistol shots were exchanged 
between two partisans. Fortunately, both shots missed. One of the canvassers 
challenged Van Rensselaer to a duel after the candidate spoke some hot words. 
Both showed up at the appointed hour, but Van Rensselaer offered a last minute 
apology, which was accepted. 160 

Much of the popular foment was directed towards political action that might 
undo the decision. Petitions were signed to convince the legislature to overturn 
the canvassing committee, 161 even though the statute gave the legislature no more 
right to do that than a court. One Federalist writer wrote, "I sincerely hope 
violent measures will not become necessary," but he warned that "the 
independence of this country has been purchased at too dear a price" to let the 
decision stand. 162 There was also a Federalist plan to ask the legislature to call a 
convention for the purpose of overturning the canvassing committee, in 
recognition that the legislature lacked the authority itself. 

Frank Monaghan, the historian writing in the early twentieth century, quotes 
a proclamation written at the house of a shoemaker in Herkimer County. 
Monaghan characterizes this proclamation as "the most remarkable document of 
this campaign of protest" because of its explicit invocation of the Declaration of 
Independence as authority for repudiating the canvassing committee's decision. 163 
The body's decision was unlawful, the proclamation reasoned, because it 
repudiated the fundamental will of the majority of the people, who in their self- 
preservation were entitled to take "every laudable exertion within the verge of our 
strength and ability" to remove Clinton from office. 164 Thus, average citizens had 
no difficulty relying on the "first principles" underlying the founding of the 
Republic itself as sufficient justification for measures to remedy what they saw 
as the canvassing committee's usurpation of the right to self-government that they 



155. Taylor, supra note 27, at 1 80. 

1 56. Hammond, supra note 27, at 70. 

157. Taylor, supra note 27, at 1 8 1 . 

158. Id. 

1 59. Young, supra note 27, at 3 1 1 . 

1 60. Taylor, supra note 27, at 1 8 1 -82. 

161. Young, supra note 27, at 3 1 0. 

162. Berkin, supra note 27, at 24. 

1 63. Monaghan, supra note 78, at 340. 

164. Id. at 336. 



2010] THE FOUNDERS' BUSH V. GORE 53 



had fought so recently (and so hard) to secure. 165 And while this particular 
proclamation may have been exemplary, it by no means stood alone. Other 
voices also resorted to revolutionary first principles to defend unrest against the 
theft of their democracy. 

B. The Conduct of the Losing Candidate 

Clinton was inaugurated for his new term on July 1 , 166 The period between 
the canvassing committee's decision in the middle of June and the end of July set 
the stage for the decision that Jay as candidate, and the Federalists as his party, 
made on how they were going to respond to what they perceived as the theft of 
Jay's victory. Jay, as Chief Justice of the United States, was riding circuit in New 
England at the time. He heard news of the canvassing decision on June 1 8 in 
Hartford, Connecticut. 167 Appearing to take the news calmly, he wrote to his 
wife, 

The reflection that the majority of the electors were for me, is a pleasing 
one; that injustice has taken place does not surprise me ... . Having 
nothing to reproach myself with in relation to this event, it shall neither 
discompose my temper nor postpone my sleep. A few years will put us 
all in the dust, and it will then be of more importance to me to have 
governed myself, than to have governed the State. 168 

This letter signals an important theme: better to be magnanimous in defeat, 
because there will be another election in a few years when political fortunes may 
turn. As we shall see, Alexander Hamilton became a leading proponent of this 
view among Jay's advisers. 

Meanwhile, back in New York, Jay's wife wrote her husband on June 12: 
"King says he thinks Clinton as lawfully Governor of Connecticut as of New 
York but he knows of no redress." 169 This assertion shows the inability of Jay's 
team to develop a judicial recourse. 

On June 15, in The Daily Advertiser, "Gracchus" "proposed [that] meetings 
of electors in all the counties and committees of correspondence should be 
arranged." 170 Gracchus asserted that if "the ordinary powers of legislation, should 
prove an incompetent remedy for rescuing the people from a usurped authority; 
the same powers which established the constitution, must in the last resort 



165. Id. 

1 66. Hammond, supra note 27, at 7 1 . 

167. Monaghan, supra note 78, at 336. 

1 68. Letter from John Jay to Sarah Livingston Jay, in William Jay, 1 The Life of John Jay 
289(1833). 

169. Letter from Sarah Livingston Jay to John Jay (June 12, 1792), in 3 Correspondence 
and Public Papers of John Jay, supra note 58, at 433. 

1 70. The Papers of Alexander Hamilton, Volume XI: February- June 1 792, at 591 n.3 
(Harold C. Syrett ed., 1966). 



54 INDIANA LAW REVIEW [Vol. 44:23 



convene for its preservation." 171 

On June 28, Hamilton, while Secretary of the Treasury, wrote to King, 

I have not, as you well may imagine, been inattentive to your 
political squabble. I believe you are right (though I have not accurately 
examined) but I am not without apprehension that a ferment may be 
raised which may not be allayed when you wish it. Tis not to be 
forgotten that the opposers of Clinton are the real friends to order [and] 
good Government, and it will ill become them to give an example of the 
contrary. 

Some folks are talking of Conventions and the Bayonet. But the case 
will justify neither a resort to first principles nor to violence. Some 
amendments of your election law and possibly the impeachment of some 
of the Canvassers who have given proofs of premediated partiality will 
be very well — and it will answer good purposes to keep alive within 
proper bounds the public indignation. But beware of extremes! 

There appear to be no definite declared objects of the movements on 
foot which renders them the more Ticklish. What can you do? What do 
you expect to effect? 172 

Here Hamilton was acting in his role as a somewhat detached adviser. True to 
character, he was being prudent and cautious. He viewed the Federalists as the 
party of conservatism, and despite its shared revolutionary heritage with the 
Democratic-Republicans, he wanted to distance the Federalists from 
revolutionary means, especially in this instance. He was not averse to a little 
rabble-rousing for partisan gain, but he did not want it to get too far out of hand. 
Although he did not say why, he did not believe the facts regarding the theft of 
Jay's victory warranted the kind of extreme measures that some Federalists were 
advocating. 

As Jay was traveling back to New York City, he stopped in the town of 
Lansingburgh, New York (a little north of Albany). He was received by a 
committee of citizens whose public address in support of him expressed their 
"sincere regret and resentment at the palpable prostitution of those principles of 
virtue, patriotism, and duty, which has been displayed by a majority of the 
canvassing committee, in the wanton violation of our most sacred and inestimable 
privileges, in arbitrarily disfranchising whole towns and counties of their 
suffrages." 173 They added that "though abuse of power may for a time deprive 
you and the citizens of their right, we trust the sacred flame of liberty is not far 
extinguished in the bosoms of Americans as tamely to submit to wear the 



171. Id. 

1 72. Letter from Alexander Hamilton to Rufus King (June 28, 1 792), in HAMILTON, supra note 
170, at 588-89 (emphases in original). On this letter, King notes, "I have had not agency in 
promoting the measures adopted respecting the decision of the [c]anvassers. I have however felt 
the utmost indignation." Id. at 591 n.3. 

173. Lansingburgh Committee to Jay, in 3 Jay, supra note 58, at 436. 



2010] THE FOUNDERS' BUSH V. GORE 55 



shackles of slavery, without at least a struggle to shake them off." 174 Thus, by 
their words, these citizens appeared to be urging Jay to take more aggressive 
measures to defend his claim of victory. 
Jay, however, responded cautiously: 

[E]very event is to be regretted that tends to introduce discord and 
complaint. Circumstanced as I am in relation to the one you mention, I 
find myself restrained by considerations of delicacy from particular 
remarks. 

The people of the State know the value of their rights, and there is 
reason to hope that the efforts of every virtuous citizen to assert and 
secure them will be no less distinguished by temper and moderation, than 
by constancy and zeal. 175 

On July 2, Jay passed through Albany, where another committee of citizens made 
a similar address: 

[A] majority of the Committee of Canvassers, by an unwarrantable 
stretch of power, rejected the votes of several whole Counties, in direct 
violation of law, justice, precedent, and the most essential principles of 
our constitution — their object, as it most glaringly appears, being to 
secure an administration favourable to their views, in opposition to the 
voice of a majority of the people. 176 

This committee was prepared to exercise restraint, but only up to a point: 

[W]e shall wait with a firm and cool deliberation for Legislative 
interposition to afford or procure redress. . . . [C]ould it possibly happen, 
that we meet with disappointment, the people must proceed to determine, 
whether a Chief Magistrate is to be elected by their voice, or by a 
Committee, the majority of whom were selected and named by a party; 
and those who may be the cause, must be answerable for the 
consequences that may follow. 177 

Jay's reply to this group hinted a little more at a desire to find some recourse: 

[P]rudence dictates a great degree of delicacy and reserve; but there are 
no considerations which ought to restrain me from expressing my ardent 
wishes that the important question you mention may be brought to a 
decision which all that mature reflection as well as manly constancy 
which its connection with the rights of freemen demands; with all that 
temper which self-respect requires; and with all that regard to 
conciliation, benevolence, and good neighbourhood which patriotism 



174. Id. 

175. Mat 437. 

176. Mat 438. 

177. Mat 439. 



56 INDIANA LAW REVIEW [Vol. 44:23 



prescribes 



178 



This speech indicates that he was hedging just enough in case sufficient support 
developed for more drastic measures to install him in office. Still, he wished to 
remain noncommittal. 

Jay arrived home in New York City on July 10, where he was greeted by 
much larger crowds with sentiments similar to those he received upstate in 
Lansingburgh and Albany. 179 His local welcoming committee declared, 

This wanton and daring attack upon the invaluable rights of suffrage has 
excited a serious alarm amongst the electors of the State, and united them 
in measures to obtain redress. In the pursuit of an object so interesting 
we shall like freemen act with moderation and order; but at the same time 
with zeal and perseverance. Whilst we respect the laws, we respect 
ourselves and our rights and feel the strongest obligations to assert and 
maintain them. 180 

Arguably, receiving this same message in Manhattan was even more significant, 
given the city's greater population and role as a center of commerce. But Jay 
already appeared to be backing away from the precipice when he replied to his 
supporters three days later: 

Such is our Constitution, and such are the means of preserving order 
and good government, with which we are blessed, that, while our citizens 
remain virtuous, free, and enlightened, few political evils can occur, for 
which remedies perfectly effectual, and yet perfectly consistent with a 
general tranquility cannot be found and applied. 

I derive great satisfaction from the hope and expectation that the 
event which at present excites so much alarm and anxiety, will give 
occasion only to such measures as patriotism may direct and justify; and 
that the vigilance and wisdom of the people will always afford to their 
rights that protection for which other countries, less informed, have often 
too precipitately recurred to violence and commotion. 

In questions touching our constitutional privileges, all the citizens are 
equally interested; and the social duties call upon us to unite in 
discussing those questions with candour and temper, in deciding them 
with circumspection and impartiality, and in maintaining the equal rights 
of all with constancy and fortitude. 

They who do what they have a right to do, give no cause of offence; 
and therefore every consideration of propriety forbids that differences in 
opinion respecting candidates should suspend or interrupt that mutual 
good-humour and benevolence which harmonizes society, and softens 



178. Id. at 440. 

1 79. See, e.g.,STAHR,supra note 28, at 288 (describing "hundreds" of supporters who greeted 
Jay on his arrival on Harlem Heights in upper Manhattan). 

1 80. Letter from Nicholas Cruger and the New York Committee to Jay (July 13, 1792), in 3 
JAY, supra note 58, at 442. 



2010] THE FOUNDERS' BUSH V. GORE 57 



the asperities incident to human life and human affairs. 

By those free and independence electors who have given me their 
suffrages, I esteem myself honoured; for the virtuous, who withheld that 
mark of preference, I retain, and ought to retain, my former respect and 
good-will. 181 

These remarks sound like a concession speech. Jay spoke clearly against violence 
and for reconciliation. Yet this speech did not close the door entirely to the 
pursuit of additional measures. In the back of Jay's mind, he still may have been 
hoping that the idea of a new constitutional convention, which his Federalist 
friends were exploring, might work. 

C The Consideration of a New Constitutional Convention 

Ironically, John Jay himself was the principal author of New York State's 
first constitution in 1777, shortly after the Declaration of Independence. 182 He 
was proud of his handiwork, but it clearly failed him as a candidate for governor 
in 1792. The state constitution's failings were not limited to the fact that its 
authors did not anticipate the development of a two-party rivalry that would infect 
the gubernatorial election and, more importantly, institutions of government like 
the canvassing committee. Even worse, the New York Constitution of 1777 
contained no mechanism for any constitutional amendments. 183 

Because Clinton's supporters controlled the state legislature at the time, the 
Federalists were in no position to get the legislature to adopt any statutory 
measures to undo the canvassing committee's ruling. Nor would the legislature 
be inclined to call for a new constitutional convention to replace or amend the 
1777 constitution for the particular purpose of nullifying Clinton's re- 
inauguration based on the committee's divided decision. Thus, if the Federalists 
were to have any hope of calling a new constitutional convention for this purpose, 
they needed to figure out how to do so through entirely extralegal means, outside 
the parameters of the 1777 constitution itself. This idea was the one the 
Federalists focused on while Jay was traveling back to New York City from 
riding circuit in New England. 

On July 10, the same day that Jay heard from his many agitated New York 
City supporters, King wrote to Hamilton to convey the news of Jay's travels and 
the receptions Jay was receiving. In this letter, King characterized Jay as 
advocating for the idea of a single-purpose constitutional convention (at the same 
time that Jay was being guarded in his public comments): 

The addresses from [A]lbany and other northern Towns, together with 
Mr. Jay[']s answers leave no room to doubt that the question will be 



181. Letter from John Jay to the New York Committee (July 1 6, 1 792), in 3 Jay, supra note 
58, at 443-44. 

1 82. Charles Z. Lincoln, 1 The Constitutional History of New York: 1 609- 1 822, at 
162-88(1906). 

183. Id. 



58 INDIANA LAW REVIEW [Vol. 44:23 



brought to a decision in some way or other — if it can be done under any 
authority of Law I shall rejoice, because I consider the Determination to 
be a precedent dangerous to free Elections. Still however I do not clearly 
see the prudence of an appeal to the People — yet others have no doubts 
on that subject, and there is reason to conclude that Mr. Jay deems the 
occasion such as will justify the step should it be found that the powers 
of government are insufficient to afford a Remedy. He has an idea of a 
convention for the sole purpose of canvassing the canvassers and their 
Decision. 

But Mr. Clinton is in fact Governor, and though he may not be free 
from anxieties & Doubts, he will not willingly relinquish the Office — the 
majority, and a very great one are now against him — should he persist, 
and the sword be drawn, he must go to the wall — but this my dear Sir, is 
a dreadful alternative, and what & whom it may affect is altogether 
uncertain. If this case will justify a recurrence to first Principles, what 
are we not to expect from the disputes, which must & will arise in the 
Succession of the Presidency? And how are we able to place confidence 
in the security of our Government? 184 

This letter is rich with details and significance. Here we see King's 
understanding of the canvassing committee's "[determination" as a "precedent 
dangerous to free elections" and where, in particular, he saw this precedent as 
potentially affecting presidential as well as gubernatorial elections. 185 Even so, 
for what today we would describe as pragmatic reasons, King was not inclined 
to support Jay's direct "appeal to the [pjeople" through the mechanism of a 
single-purpose constitutional convention. King thought Jay's belief that a resort 
to "first [principles" was morally justified in this situation precisely because "the 
powers of government [were] insufficient to afford a [r]emedy." 186 But 
strategically King feared that even if the Federalists were successful in calling 
this single-purpose constitutional convention, Clinton would refuse to quit the 
governorship; therefore, "the sword [would] be drawn" and the conflict would 
end in "dreadful" violence. 187 Thus, out of "prudence," King indicated that he 
disfavored the pursuit of any extralegal means and wanted to challenge the 
canvassing committee only "if it [could] be done under any authority of [l]aw." 188 
Alas, King was never able to develop any legal avenue of redress. 

Kent became another proponent of the single-purpose constitutional 
convention. Initially, his view was closer to King's, thinking that the Federalists 
should simply acquiesce for fear of sparking political violence: 

The people, in their original character, can, no doubt, rectify the 



184. Letter from Rufus King to Alexander Hamilton (July 10, 1792), in The Papers OF 
Alexander Hamilton, Volume XII: July-October 1792, at 20-21 (Harold C. Syretted., 1967). 

185. Id. 

186. Id. 

187. Id. at 20. 

188. Id. 



2010] THE FOUNDERS' BUSH V. GORE 59 



grievance, but I don't see that the ordinary legislatures have jurisdiction 
over a contested election to the chief magistracy. The peace of the 
community requires an ultimate decision somewhere, and if we attempt 
to declare the chair vacant, we must assume the powers of the convention 
parliament in 1688, and if the Governor would claim his office under the 
certificate and law, I see no peaceable way to accommodate. My idea is 
that we ought, from consideration of peace and prudence, to acquiesce 
in the authority of the decision. It is highly proper, however, that the 
people should reprobate the atrocious insult and injury, and pursue with 
recrimination and punishment the authors of the wrong, as far as the law 
will tolerate them. 189 

This letter shows that from the start Kent had some form of a convention in mind. 
But he had not yet formulated a way to make the plan palatable to his sense of the 
need for civic peace. By July 1 1 , the day after King wrote to Hamilton about the 
idea of a single-purpose convention, Kent was doing the same in another letter to 
his brother: 

I have, since my last letter, revolved in my mind a mode of redress now 
in contemplation, and I warmly advocate it. It is that a convention be 
called under the recommendation of our legislature, to take the decision 
into review and to ratify or annul it and order a new election, as they 
shall deem proper. This mode is wise, benign, orderly, and republican, 
and no application can be made to it of the harsh and forbidding name of 
faction and sedition. I shall espouse it, and I believe firmly that it will 
succeed. I hope therefore what I wrote before will be no check to your 
ardent hopes of redress. 190 

Kent's support for this idea indicates how seriously it was considered. He was 
in the legislature at the time and by nature cautious (as his initial inclination 
showed). If he was on board, the idea was gaining momentum. 

By contrast, Hamilton, who was entirely opposed to Jay's concept of a single- 
purpose convention, responded to King on July 25 that King needed to talk Jay 
out of this idea: 

I received lately a letter from you, in which you expressed sentiments 
according with my own, on the present complexion of your party politics, 
as, if a letter of mine to you did not miscarry, you will have seen. I 
wished that Clinton and his party should be placed in a just light before 
the people, and that a spirit of dissatisfaction, within proper bounds, 
should be kept alive; and this for national purposes, as well as from a 
detestation of their principles and conduct. 

But a resort to first principles, in any shape, is decidedly against my 
judgment. I don't think the occasion will, in any sense, warrant it. It is 



1 89. Letter from James Kent to Moss Kent, Jr. (June 1 5, 1 792), in Memoirs and Letters of 
James Kent, supra note 62, at 45-46. 

190. Mat 46-47. 



60 INDIANA LAW REVIEW [Vol. 44:23 



not for the friends of good government to employ extraordinary 
expedients, which ought only to be resorted to in cases of great 
magnitude and urgent necessity. I reject as well the idea of a Convention 
as of force. 

To rejudge the decision of the Canvassers by a Convention, has to 
me too much the appearance of reversing the sentence of a Court by a 
Legislative decree. The canvassers had a final authority in all the forms 
of the Constitution and the laws. A question arose in the execution of 
their office, not absolutely free from difficulty, which they have decided 
(I am persuaded wrongly) but within the power vested in them. I do not 
feel it right or expedient to attempt to reverse the decision, by any means 
not known to the Constitution or laws. The precedent may suit us to- 
day; to-morrow we may rue its abuse. 191 

Hamilton's character as the ever-careful calculator is evident in this letter. Again, 
he was willing to stoke the flames of public passion a little, as long as it was not 
too much, and he quickly linked the New York fight between the Federalists and 
Democratic-Republicans with the national version of the same conflict. 192 But 
echoing his letter to King a month earlier, which Hamilton feared was lost in the 
mail, Hamilton elaborated on his belief that "a resort to first principles" 193 — either 
by force, or even by convention — was unwarranted. 

Hamilton's arguments against Jay's idea of a single-purpose convention are 
nuanced and sophisticated. Seeing the canvassing committee as equivalent to a 
court, as Kent did, Hamilton believed it wrong that a legislative body (including 
a constitutional convention) would upset an already adjudicated judicial 
decision. 194 Legislative revision of judicial judgments, in Hamilton's view, risked 
replacing the rule of law with the arbitrary tyranny of legislative whims. 195 

Hamilton also recognized the existence of two alternative views on whether 
the canvassing committee's decision was as wrong as Jay's supporters declaimed. 
Perhaps because Hamilton watched the controversy from afar (he alluded to this 
fact later in this letter), or perhaps because of his calculating temperament, he saw 
the canvassing committee's decision as plausible. Hamilton hastened to add that 



191. Letter from Alexander Hamilton to Rufus King (July 25, 1792), in 1 The Life and 
Correspondence of Rufus King 1755-1794, at 417 (Charles R. King ed., Da Capo Press 1971) 
(1894). 

1 92. One national concern of the Federalists was whether they would be able to keep control 
of the Vice Presidency, which Adams had occupied in Washington's first administration. Clinton's 
status in New York could affect his prospects as a potential Vice President from the Democratic- 
Republican party, allied with Madison and Jefferson on economic policies rather than with 
Hamilton and the Federalists. 

193. Letter from Alexander Hamilton to Rufus King (July 25, 1792), supra note 191, at 417. 

194. Id. 

195. In this respect, Hamilton's separation-of-powers concern is a precursor of the Supreme 
Court's decision in United States v. Klein, 80 U.S. 128 (1871). See also Plaut v. Spendthrift Farm, 
Inc., 514 U.S. 211, 218 (1995) (applying the Klein doctrine). 



2010] THE FOUNDERS' BUSH V. GORE 61 



he viewed that decision as incorrect, of course (perhaps he doth protest too 
much), but nonetheless he did not think it could be placed outside the bounds of 
reason. He probably had heard the facts from Otsego County that would support 
the canvassing committee's ruling. And because the ruling was within the 
canvassing committee's exclusive jurisdiction, Hamilton (like King) saw no basis 
under New York's constitution or laws for overturning the ruling. 

Hamilton's letter added an additional argument for opposing Jay's idea for 
a single-purpose convention. His additional argument is one often heard when 
the suggestion of a single-purpose constitutional convention is raised — which is 
that there is no guarantee of confining the constitutional convention to a particular 
issue. The Framers of the U.S. Constitution knew that truth from their own 
experience in 1787. Similarly, Hamilton argued that if the Federalists in New 
York got their wish for a constitutional convention to revise the canvassing 
committee's decision, the convention might go on to address other issues in ways 
not to the conservative Federalists' liking: 

I am not even sure that [a convention] will suit us at all. I see already 
publications aiming at a revision of the constitution with a view to 
alterations which would spoil it. It would not be astonishing, if a 
Convention should be called, if it should produce more than it is 
intended. Such weapons are not to be played with. Even the friends of 
good government in their present mood may fancy alterations desireable 
[sic] which would be the reverse. 

Men[']s minds are too much unsettled every where at the present 
juncture. Let us endeavor to settle them & not to set them more afloat. 

I find that strong minded men here [in Philadelphia] view the matter 
in the same light with me; and that even Mr Jay[']s character is likely in 
a degree to suffer by the idea that he fans the flame a little more than is 
quite prudent. I wish this idea to be conveyed to him with proper 
management. I have thoughts of writing to him. 

You see, out of the reach of the contagion, I am very cool and 
reasonable; if I were with you I should probably not escape the 
infection. 196 

Hamilton raised the thought that Jay's political future might suffer if he tried too 
hard to contest the canvassing committee's decision. In this respect, he moved 
away from his lawyerly opposition to the convention idea to opposition grounded 
in political considerations. Hamilton wanted Jay to be a viable candidate in 
future elections; this concern is one expressed throughout the history of disputed 
elections in the United States. Perhaps most famously, Richard Nixon refused to 
challenge John F. Kennedy's victory in 1960 for fear of being labeled a sore 
loser, and he won the 1968 presidential election. 197 More recently, some urged 



1 96. Letter from Alexander Hamilton to Rufus King (July 25, 1 792), in XII Hamilton, supra 
note 1 84, at 99 (emphasis in original). 

1 97. For a review of recent scholarship on the 1 960 presidential election, see David Stebenne, 
The Election of 1960 Fifty Years Later, ELECTION LAW @ MORITZ COMMENTARY (Nov. 8, 2010), 



62 INDIANA LAW REVIEW [Vol. 44:23 



Gore in 2000 to back down rather than challenging the certification of Bush's 
victory in court, but Gore, perhaps to his detriment in 2004 and 2008, did not 
heed this advice. 198 Of course, going to court in 2000 is not the same sort of 
extralegal challenge as calling a constitutional convention in 1792. 

Still, the larger point remains. Hamilton's concern was not about achieving 
a just outcome for the election of 1792. Rather, his concern was for positioning 
the Federalists and their candidates to prevail over the long term. Jay, the jurist, 
or perhaps just because he was the candidate affected, was having a harder time 
giving up on the justice of his cause. As a politician, he also recognized the 
importance of protecting his political reputation, but he was torn by these 
conflicting sentiments. Thus, as of the end of July, it was still an open question 
whether Jay would accept Hamilton's advice or, instead, go forward with the 
convention plan. 

Accordingly, Hamilton would not let the matter drop. On July 27, he wrote 
King again, asking for "all the authorities which were consulted by you when you 
gave your opinion" on "the question decided by the [cjanvassers" because he 
(Hamilton) was "[d]esirous of examining [it] accurately." 199 He also wanted 
those documents "as soon as may be (had)." 200 Meanwhile, William Lewis wrote 
to Hamilton on July 2 1 of his opinion concerning the legality of the canvassing 
committee's decision: 

My opinion . . . was founded on this Principle, that the important right of 
Suffrage being Secured to the People by the Laws and Constitution, and 
not depending on the Conduct of others, they cannot be deprived of it but 
by their own fault. That the manner of taking, & more espectially [sic] 
of transmitting the votes, being merely directory, an Error or wilful [sic] 
neglect or disobedience in the officer in either of these particulars, will 
Subject him to punishment for a misdemeanor in office, but will not 
affect the Election or destroy the rights of the people, where no fraud or 
unfairness appears in the Conducting of the Election, and it is made 
Satisfactorily appear that the votes are the same that were given in 
with[ou]t Alternation Diminution or addition. That this principle applies 
with great force, where (as in the present Case) the Sheriff was not an 
Election Officer, nor a Person having anything to do with holding the 
Election, and where the Election itself is the Substance and the 
transmitting of the votes is only form. If this were not the Case any 
Sheriff might at pleasure deprive a whole County of the right of 
Suffrage! I know of no Case expressly in point, but there are many in the 



http://moritzlaw.osu. edu/electionlaw/comments/index.php?ID=7929. 

1 98. See, e.g. , R. W. Apple, The 2000 Elections: News Analysis; Recipe for a Stalemate, N. Y. 
Times (Nov. 9, 2000), http://www.nytimes.eom/2000/l l/09/us/the-2000-elections-news-analysis- 
recipe-for-a-stalemate.html (comparing Gore's situation to Nixon's). 

1 99. Letter from Hamilton to King (July 27, 1 792), in 1 The Life and Correspondence of 
Rufus King, supra note 1 9 1 , at 4 1 7. 

200. Id. 



2010] THE FOUNDERS' BUSH V. GORE 63 



books the Principles of which I think are fully applicable. 



201 



In this letter, Lewis did not refer to the idea of calling a constitutional convention 
or otherwise suggest how he would attack the canvassing committee's decision. 
But he seemed unwilling to let the matter rest, or at least he still seemed to be 
smarting from the injury inflicted by the committee. 

During this same period of uncertainty, Cooper proposed to Van Rensselaer 
a new election in Otsego. 202 Meanwhile, King wrote back to Hamilton on July 
29, 

Mr. Jay will be with you this week — you will therefore have an 
opportunity to converse with him respecting our very unpleasant 
situation. All the measures which have been pursued have been 
calculated to induce the Legislature to call a convention to revise the 
decision of the canvassers. So far as I am able to form an Opinion, a 
majority of the Assembly are Clintonians, and if so, will not agree to call 
a convention — should this be the case, the business will then terminate. 203 

King seemed to be telling Hamilton that the convention idea was moving 
forward, but in a manner that would be unable to prevail. This scenario of the 
convention idea dying in the legislature was not entirely unwelcome to the 
Federalists. They could score political points by complaining of the injustice 
wrought by the canvassing committee, yet they would bear no responsibility for 
extralegal measures that might spin out of control, while at the same time blaming 
the legislature for doing nothing to redress the injustice. 

Even into August, however, there were those still urging Jay and his allies to 
keep up the fight against the canvassing committee's decision. For example, on 
August 14, a federal district judge in Rhode Island, Henry Marchant, wrote to 
Jay, 

While New England laments the loss the publick [sic] may sustain in 
your quitting your present important federal station, they feel as friends 
to order, decency, and the rights of man, a wish, not merely for your 
success, but the success of constitutional rights; and would not be happy 
to find the steady advocates of liberty desert the cause. Example is 
Precedent; and in our first setting out we should be cautious how we 
establish bad precedents. Posterity has a demand on us — that the laws 
and constitution we have been blessed with are not handed down to them 
mangled or in fetters. 204 



201. Letter from William Lewis to Alexander Hamilton (July 21, 1792), in XII Hamilton, 
supra note 184, at 65-66. This letter is the one in which Lewis refers to a Pennsylvania Supreme 
Court opinion from 1782 concerning an election to the supreme executive council of the state's 
legislature. The other precedents he mentions in the letter are British. 

202. YOUNG, supra note 27, at 3 12. 

203 . Letter from Rufris King to Alexander Hamilton (July 29, 1 792), in XII Hamilton, supra 
note 184, at 65-66. 

204. Letter from Henry Marchant to John Jay (Aug. 14, 1792), in 3 Jay, supra note 134, at 



64 INDIANA LAW REVIEW [Vol. 44:23 



This letter is more evidence that members of the Founding Generation 
nationwide, and not just in New York, knew that they were setting a precedent 
(good or bad) by how they handled the dispute over the New York gubernatorial 
election of 1792. This episode was a "first setting out" regarding this kind of 
controversy, and Judge Marchant wanted Jay to press on and not "desert the 
cause" of "liberty." As such, the precedent set would be one protective of 
"constitutional rights," rather than leaving them "mangled or in fetters." 205 

Nonetheless, according to this author, an even worse precedent would be one 
that settled disputed elections through violence rather than law. Therefore, Judge 
Marchant applauded Jay's constraint in pursuing his cause. Recognizing that a 
temperate response to the canvassing committee might end in defeat, Judge 
Marchant saw defeat as preferable to victory by violence: 

The delicate, prudent, and cautious manner, so peculiar to you, in which 
you answered the addresses of your fellow-citizens, has given great 
pleasure; for while it is our duty to contend against the violations of 
essential rights, it behooves us that we do not by our own conduct 
establish the violence we contend against. We had better fail — having 
done all that faithful citizens and guardians of the laws ought to do, than 
proceed by methods disgraceful to a good cause. 206 

Moderation, or perhaps ambivalence, is the mood that this letter ultimately 
conveys. 

Robert Troup wrote to Hamilton, his former roommate, on August 24. Troup 
was not so moderate or ambivalent, as he had always been the one most 
vociferous in pressing Jay's cause. (In this respect, too, his role resembles the 
one Ron Klain played for Gore two centuries later). Troup, presumably knowing 
that Hamilton counseled caution, defended his more aggressive stance: 

I have as you have learnt taken a very active part ab[ou]t the wicked & 
abominable decision of the canvassers. I think & have always thought, 
my good friend, this decision to be subversive of the most sacred right 
that can be enjoyed under any government. Quickly therefore to submit 
to it would argue a poverty of spirit & an indifference to the principles 
of freedom which would fix an indelible stigma upon our characters. I 
have always imagined & now see no reason for imag[in]ing otherwise 
that we should not obtain redress. My object has been to make a strong 
impression upon the public mind of the deep corruption of Clinton & his 
party and thus to render him odious. We have pretty well succeeded in 
this object & I trust our success will be more complete. I have no 
apprehension that we shall endanger the political ship. It is the interest 
of us all that she should be kept in her present course with a fair wind . 
... Be not therefore uneasy — but at the same [time] do not forget that 



444-45. 

205. Id. at 445. 

206. Id 



2010] THE FOUNDERS' BUSH V. GORE 65 



allowances should be made for the keen anguish we suffer from the 
wound we have received. 207 

In this way, Troup directly responded to Hamilton's concern that pressing 
forward might cause the situation to spin out of control. On the contrary, 
according to Troup, there was no danger to the polity if the Federalists convinced 
the public that justice required redress for Jay. 

Hamilton, however, was not persuaded by Troup's plea. He wrote his own 
note on the back of Troup's letter: "No answer necessary." 208 Perhaps Hamilton 
already knew that Jay's cautious instincts would cause him to side with Hamilton, 
rather than Troup, on the course of conduct they should take. 

D. The View from Virginia 

Initially, moderates tended to support Jay's position, and even some 
Clintonians expressed reservation. From a distance, Jefferson thought that 
Clinton should repudiate his purported victory: "[it] does not seem possible to 
defend Clinton as a just or disinterested man if he does not decline the office." 209 
He thought this even as he knew of the controversy over Cooper's conduct in 
Otsego. 210 

Historian Jabez Hammond says that Clinton could have acted 
magnanimously — "if he had advised them to allow the disputed votes, is it 
probable that a majority of the committee being his personal and political friends, 
would have rejected them?" 211 Hammond, however, observed what all of us have 
observed concerning candidates in more recent disputed elections: 

The excitement produced by a heated and sharply contested election, in 
the result of which he was personally concerned, must have biassed [sic] 
and clouded the otherwise clear and pure mind of the governor. . . . How 
hard is it for the most pure minded man to adjudicate upon a question 
against his own wishes and interest? Besides this, the governor would 
have had to contend, and did have to contend, not only against his own 
interest and wishes, but against the persuasions and wishes of all those 
political friends who had steadily and zealously supported him, and 
whose political prospects greatly depended on the decision of the 



207. Letter from Robert Troup to Alexander Hamilton (Aug. 24, 1792), in XII Hamilton, 
supra note 184, at 292. 

208. XII Hamilton, supra note 1 84, at 273 n.5. 

209. Stahr, supra note 28, at 287. 

210. "The Clintonians," Jefferson informed Madison, "tell strange tales about these votes of 
Otsego." Letter from Thomas Jefferson to James Madison (June 21, 1792), in 6 The Writings of 
Thomas Jefferson, 1792-1794, at 89 (Paul Leicester Ford ed., 1895). Jefferson was fearful 
that — as a result of the apparently stolen gubernatorial election in New York — if their party backed 
Clinton as the candidate for Vice President to replace Adams, "the cause of republicanism will 
suffer." Id. at 90. 

211. Hammond, supra note 27, at 69. 



66 INDIANA LAW REVIEW [Vol. 44:23 



canvassers. Considering therefore, the strength of party excitement, and 
the weakness of human nature, it is not surprising that Mr. Clinton 
should have desired that the canvassing committee should decide the 
election in his favor. 212 

In other words, Hammond says that no one should expect a politician to act based 
on honor and virtue when the prize at stake is a major one, like being governor 
of New York. Like Hammond, we could not have expected George Bush to say 
that Al Gore really deserved to be declared the winner of Florida's Electoral 
College votes, and thus the presidency, based on the defect of the "butterfly 
ballot" alone. 213 

Most interestingly, Madison expressed a nuanced view on whether Clinton 
should have "declined the office," as Jefferson claimed. First of all, Madison saw 
"the spirit of party" on both sides of the controversy based on his reading of the 
newspapers from New York. 214 For his part, Madison tried to articulate a 
detached perspective that was not infected by his own partisanship. "Whether 
Clinton ought to wave the advantage of forms," Madison wrote in response to 
Jefferson, "may depend I think on the question of substance involved in the 
conduct of the Otsego election." 215 Madison continued, "If it be clear that a 
majority of legal honest votes was given ag'st him [against Clinton], he ought 
certainly not to force himself on the people." 216 This sentence expressed 
agreement with Jefferson up to a point. If Jay's supporters were correct that the 
status of Smith as a sheriff was just a technicality, and the votes from the county 
were themselves sound, then Madison was siding with Jefferson in thinking that 
Clinton ought to do the honorable thing and decline to win based solely on a 
formal defect in the sheriffs status. 

Madison, however, saw the situation as more complicated than Jefferson did. 
Immediately after the sentence just discussed, Madison continued, "on a contrary 
supposition" — meaning that if one supposed that there was a reasonable doubt 
whether Jay in fact won "a majority of legal honest votes" — then Clinton "[could 
not] be under such an obligation" to decline the office. 217 Madison explained that 
Clinton would actually owe it to his party to fight for the office if there was a 
plausible claim that he actually won more valid votes. Clinton in this situation, 
according to Madison, "would be restrained by respect for his party if not by a 



212. Mat 69-70. 

213. Patrick Buchanan acknowledged that most of the votes he got as a result of the butterfly 
ballot were, in all probability, intended for Gore — more than enough to put Gore ahead of Bush. 
Bush could have conceded the election on that basis, and perhaps that would have been the 
magnanimous thing to do. He did not, and as our political culture has evolved, we would not have 
expected him to do so. 

214. Letter of James Madison to Thomas Jefferson (June 29, 1792), in 15 The Papers of 
James Madison 331 (rev. ed. 1983) (1971). 

215. Id. at 331-32. 

216. Id. at 332 (emphasis in original). 

217. Id. 



2010] THE FOUNDERS' BUSH V. GORE 67 



love of power." 218 In other words, Madison was making an argument somewhat 
different from Hammond's. It is not merely that we can expect politicians to act 
based on political ambition even when honor or virtue would dictate otherwise. 
Rather, there are situations in which a partisan politician has a duty to his own 
party to pursue the party's interest — even if the party's interest is not identical to 
a neutral view of the public interest — as long as there is some doubt about 
whether or not the party's interest coincides with the neutral view. 

Madison's position here is quite a change from his Federalist Papers 
antagonism to the spirit of partisanship in general. Madison still wanted the 
public interest to prevail, and he still believed that a partisan politician must put 
aside partisan advantage when what the public interest calls for is "clear." 219 But 
here he appeared to be hoping for a political system that could combine two 
somewhat contradictory features: first, the system would permit politicians to act 
out of partisan motive when matters are not so clear-cut; yet, second, at the same 
time the system would figure out which partisan position coincides with an 
impartial view of the public interest. What Madison failed to provide in this letter 
to Jefferson was an explanation of the institutional apparatus that will protect the 
public interest when candidates like Clinton are acting out of partisan motives in 
circumstances where there appear to be plausible arguments on both sides. 
Madison did not tell us what to do when, for instance, Jay had good reason to 
think that he did win a majority of valid votes, whereas Clinton credibly could 
claim to the contrary. Madison did not discuss the institution of the canvassing 
committee or consider what to do if it were disproportionally populated by 
partisans, rather than being a balanced tribunal that would consider the claims on 
both sides fairly. Madison's failure to spend more time on this specific New 
York election is understandable, but the consequences of his doing so remain 
with us today. His letter to Jefferson on the New York election reveals that his 
own perspective regarding partisanship articulated in the Federalist Papers was 
no longer operative in his own mind by 1792. Thus, his 1787 conception of 
constitutional institutions was founded on faulty premises. Yet he never updated 
his views about what constitutional institutions would be necessary in light of his 
new conception of the role of partisanship in democratic elections. In short, 
Madison, as our primary Founding constitutional architect, never designed the 
kind of tribunal we need to handle a disputed election where the candidates are 
entitled to press their competing partisan claims regarding which side won more 
valid votes. 

Monroe, Madison's compatriot in Virginia, offered yet another perspective 
on the events in New York from that southern state. He confessed to Madison 
that he could not figure out which side was right: "'Tis difficult to estimate the 
merits of this controversy especially through the medium by which it is handed 
to the publick [sic] view." 220 Were the Otsego facts as the Clintonians alleged, 



218. Id. 

219. Id. 

220. Letter from James Monroe to James Madison (June 27, 1792), in The Writings of 
James Monroe, 1778-1794, at 235 (Stanislaus Murray Hamilton ed., 1898). 



68 INDIANA LAW REVIEW [Vol. 44:23 



laced with the suspicion of ballot-box tampering? Or were the Federalists right 
to complain of voter disenfranchisement merely "upon the principle of 
disqualification in the returning officer"? 221 

Monroe's uncertainty, however, concerned more than just the facts extending 
to the legal grounds upon which the dispute should be resolved. "I have not 
sufficient data to judge of it on general principles, and 'tis not improbable that 
even these might be acted on by some [sjtate regulation." 222 Here, Monroe was 
recognizing that a promulgated provision of New York law (statute, 
administrative rule, or constitutional text) might specifically address whether or 
not to count the Otsego ballots given the particular circumstances of this 
dispute. 223 If so, Monroe acknowledged that the proper adjudication of this 
dispute should set aside "general principles" even if one knew what answer they 
would dictate. General principles of law are to be followed in a dispute of this 
kind, but only if there is no positive enacted law that supersedes those 
background general principles. 

In this respect, Monroe anticipated an important discussion that has emerged 
in the wake of Bush v. Gore and Coleman v. Franken. In the post-2000 debate 
regarding whether strict or lenient enforcement of election rules is preferable, it 
has become widely acknowledged that it is better, where possible, to sidestep this 
debate about "general principles" by relying on specific provisions of state law 
that address the situation. 224 Thus, scholars urge states to take legislative 
positions on the debate between strict and lenient enforcement, spelling out their 
own state-specific resolutions of this debate in as much detail as they can. Insofar 
as Monroe recognized that it is better to resolve high-stakes disputed elections 
based on clear rules promulgated in advance rather than by an appeal to "general 
principles" or (as Madison put it) "right reason," Monroe was thinking far ahead 
of his time. 

Monroe's fellow Virginians, Madison and Jefferson, both thought they could 
figure out what answer "general principles" or "right reason" called for in the 
New York dispute. Yet as we have seen, even from their detached Virginian 
perspectives, Jefferson and Madison did not see eye-to-eye on exactly what pure 
principles of jurisprudence required in this instance. Thus, the gap in the 
assertion of principles between the Federalists and Clintonians in New York 
cannot be attributable solely to self-interest. 

To be sure, each side in New York advocated its "general principle" based on 
its partisan position in the particular case. It is ironic, moreover, that in this first 
major disputed election in U.S. history, each side adopted a jurisprudential 
posture at odds with its basic principles of political philosophy. The Democratic- 
Republicans advocated throwing the Otsego votes out, even though 
philosophically they were more predisposed than the Federalists to enfranchising 
the average citizen. In this instance, conversely, the Federalists championed voter 



221. Id. 

222. Id. 

223. Id. 

224. See, e.g., Hasen, supra note 125, at 82. 



2010] THE FOUNDERS' BUSH V. GORE 69 



enfranchisement-enhancing rules despite their philosophical tendency to be the 
more "law-and-order" party. 225 

This irony was not lost on the participants themselves. As we have already 
seen, Hamilton noted the inconsistency between Jay's pursuit of extralegal 
measures and his party's general aversion to rabble-rousing. 226 Troup 
sarcastically complained that the so-called "friends of the People," as the 
Democratic-Republicans liked to call themselves, would favor tossing out the 
Otsego ballots based on the defect in Smith's status as sheriff: "The efforts made 
to prevent the canvassing of these votes . . . upon a mere law quibble are really 
characteristic of these virtuous protecters of the rights of the people, of the 
enemies of aristocracy, and the declaimers against ministerial influence." 227 

Arguing contrary to the usual philosophy of one's party is, of course, a 
prominent feature of contemporary election disputes. For example, it was widely 
observed in the context of the disputed 2008 U.S. Senate election in Minnesota 
that Al Franken, the Democrat, was favoring a strict enforcement position that 
would disenfranchise eligible voters, the opposite of the Democratic Party's usual 
stance regarding election law. On the other hand, Coleman, the Republican, was 
championing the lenient enforcement position that his party usually opposes. 228 
Similarly, what disturbed observers most about the U.S. Supreme Court's 5-4 
decision in Bush v. Gore was that each side of that 5-4 split took a position 
opposite to its usual jurisprudential stance. 229 The five members of the majority, 
who were the conservatives on the Court, issued a ruling antithetical to their 
typical states-rights philosophy and embraced an expansive interpretation of the 
Equal Protection Clause that they normally would oppose. Conversely, the four 
liberal dissenters trumpeted a states-rights argument that they usually would find 
objectionable as a basis for interfering with enforcement of federal equal 
protection rights. 

Thus, one can cite the disputed election of 1 792 as the first in a long line of 



225. See Alexander Keyssar, The Right to Vote: The Contested History of 
Democracy in the United States 32 (rev. ed. 2009) ("The Federalists . . . tended to oppose any 
broadening of the franchise; the more egalitarian Jeffersonian Republicans viewed expansion more 
favorably."). 

226. James Kent's biographer put the point more positively: the canvassing committee's 
decision "gave the angry Federalists an opportunity to pose in a new light as the champions of the 
people's freedom." HORTON, supra note 64, at 69. Kent, in particular, changed his tune regarding 
democratic populism: 

Ordinarily the sight of liberty poles filled Kent with disgust. But the pole set up in 
Cooperstown before the court-house was an exception. In the autumn of 1792, as he 
visited the outraged shire of Otsego, he viewed it with approval. It was an emblem of 
the just indignation of the people at the recent attack upon their liberties. 
Id. at 70. 

227. Letter from Robert Troup to John Jay (May 20, 1 792), in 3 Jay, supra note 1 34, at 424. 

228. See Foley, supra note 121. 

229. See, e.g., Cass R. Sunstein, Introduction: Of Law and Politics, in THE VOTE: BUSH, 
Gore & the Supreme Court 1 (Cass R. Sunstein & Richard A. Epstein eds., 2001). 



70 INDIANA LAW REVIEW [Vol. 44:23 



cases in which the two warring parties chose whichever jurisprudential position 
was most convenient for the particular moment. This observation underscores the 
need for some impartial institution if the dispute is to be decided based on 
"general principles" rather than unambiguous statutory directives. In the absence 
of statutory clarity, there is no single objective truth discernible from "general 
principles" regarding the resolution of election disputes. The views of the 
Virginians teach us that. Moreover, in the absence of a single truth derivable 
from "general principles," partisans can pick whichever version of "general 
principles" best suits their immediate electoral need. 

Our Founding philosophers, Jefferson and Madison, did not have some pure 
and well-developed theory of how to handle a disputed election. We cannot 
simply retrieve the Founders' understanding of what to do in a case like Bush v. 
Gore and apply that Founding Era philosophy to whatever new disputed election 
occurs in our own time. Instead, the Virginia response to the New York dispute 
shows, perhaps more than anything, that the Founding philosophy on how to 
operate a constitutional democracy was incomplete. The Founders did not leave 
us a roadmap on how to get through a Bush v. Gore (or similar dispute) because 
they themselves were unsettled on how to handle this kind of situation. Jefferson 
might do one thing, Madison another — for reasons having nothing to do with the 
taint of partisanship, but simply because their own understanding of "general 
principles" and "right reason" were insufficient for specifying an answer for the 
situation at hand. This truth, above all, is why going forward, our constitutional 
democracy must design new institutions to address this kind of situation. 

E. The Clintonian Counteroffensive and the Federalist Response 

Early in the controversy of 1792, it seemed as if there might be some small 
chance that Clinton would follow Jefferson's recommendation and graciously 
accept defeat based on the Otsego ballots. 230 Chancellor Robert Livingston, a 
leading Clintonian, signer of the Declaration of Independence, and major figure 
in the state, wrote, "I confess I would have wished that all the votes had been 
counted whatever might have been the event." 231 But this position did not hold, 
and the Clintonians began planning their counterattack. By mid- July, Livingston 
took the position that "[w]hether the canvassers were right or wrong is no longer 
a question of any moment . . . their determination is conclusive, nor do I know of 
any constitutional mode of revising the question." 232 It appears that Livingston's 
opinion was that Clinton had no choice but to accept reelection once the prize was 
given to him, but this rationalization seems politically expedient. Had Clinton 
renounced the result in mid- July, surely the leading politicians in the state would 
have devised a bipartisan way to have the canvassing committee reconvene and 
revise its ruling. But Clinton in 1792, like Bush in 2000, had no interest in going 
down that accommodationist road. 



230. See YOUNG, supra note 27, at 3 1 7. 

231. Id. at 313. 

232. Mat 314. 



2010] THE FOUNDERS' BUSH V. GORE 71 



Taylor recounts the Clintonians' publication of affidavits against Cooper on 
June 16, 1792. 233 "The affidavits collectively depicted Cooper as an overbearing 
landlord and unscrupulous judge bullying his settlers with his formidable 
combination of economic and judicial power, packing the polls with unqualified 
voters, and intimidating Clintonian pollwatchers." 234 The Federalists 
counterpunched with their own affidavits. One witness changed his story three 
times, first espousing Clintonian attacks on Cooper, then supporting Cooper, and 
finally attacking him again. 235 It is difficult from this vantage, over two hundred 
years later, to determine the truth of the charges and countercharges. At the time, 
no objective tribunal was available to adjudicate the matter. 236 

The fair-minded Hammond certainly describes Cooper's behavior as 
improper, unlawful, and contrary to the operation of a free and fair election: 

The depositions of these witnesses . . . certainly do show gross 
misconduct in him as a citizen, during the canvass in Otsego, at the 
election between Jay and Clinton. It was deposed that he encouraged 
illegal voting in favor of Mr. Jay; that he knowingly had caused men to 
vote who were not freeholders; that he threatened voters with suits who 
expressed a wish to vote for Mr. Clinton, and that he menaced a Mr. 
Cannon, who came to the polls to challenge illegal voters, that if he 
challenged any one, he (the judge,) would forthwith commit him to 
jail. 237 

But as bad as Cooper's conduct was, in many people's minds it did not make the 
case for throwing out all the county's ballots because of the sheriffs defect. 238 
One historian sympathetic to the Clintonian position, who thought the evidence 
supported the charges against Cooper, also thought that "the Federalists 
established by far the better case" concerning the acceptability of ballots from a 
de facto sheriff. 239 The Federalists managed to avoid a legislative condemnation 
of Cooper through some parliamentary maneuvering; they were able to postpone 
a vote until Cooper himself had a chance to testify, but that testimony did not 
occur while the Republicans maintained control. 240 In the next election, the 
Federalists gained a majority, and by then they would not condemn their Otsego 
ally. 241 

The much larger question than the fate of Cooper's reputation was what, if 



233. Taylor, supra note 27, at 183. 

234. Id. 

235. Mat 184-85. 

236. Although the veracity of the affidavits attacking Cooper was never determined, the 
affiants found themselves criminal defendants in Cooper's court after politically motivated 
indictments were issued for crimes ranging from keeping a disorderly house to rape. Id. at 1 85-86. 

237. Hammond, supra note 27, at 76-77. 

238. See TAYLOR, supra note 27, at 192. 

239. YOUNG, supra note 27, at 320-2 1 . 

240. Id. at 322. 

241. Id. at 322-23. 



72 INDIANA LAW REVIEW [Vol. 44:23 



anything, were the Federalists ultimately going to do about what they still 
perceived as the canvassing committee's blatant theft of Jay's victory? Were they 
going to go forward with Jay's plan for a single-purpose constitutional 
convention despite Hamilton's strong objections? Or were they going to try some 
other means, before the next gubernatorial election in 1795, to unseat Clinton 
from office? Or would they simply back down altogether and wait patiently for 
that next election, hoping for decisive but delayed vindication at the ballot box? 
In the end, Hamilton got his way. The Federalists abandoned the convention 
idea and settled instead for legislative grandstanding as a public relations strategy 
with an eye to the next election. 242 In the summer and fall of 1 792, the Federalists 
knew that they did not control the state legislature. 243 Still, with James Kent in 
the lead, they pursued charges of impeachment against the canvassing committee 
and demanded a legislative investigation, 244 which lasted until January 1793. 245 
The Clintonian majority, not surprisingly, exonerated the canvasssers of any 
wrongdoing, but the investigation at least allowed the Federalists to air their 
charges. 246 The strategy partially backfired, as the Clintonians retaliated by 
conducting their own legislative investigation of Cooper and his inappropriately 
domineering behavior in Otsego. 247 These proceedings lasted another few months 
and would have led to a public censure of Cooper's behavior, but for the 
successful delay tactics of the Federalists until such time as they gained 
legislative control. 248 



242. In Hammond's words, the Federalists chose their legislative strategy "for the purpose of 
rendering the governor odious, in consequences of the rejection of the Otsego votes." Hammond, 
supra note 27, at 77. 

243. Young, supra note 27, at 3 10. 

244. In arguing for impeachment, Kent made this case to the legislature: 

It is generally understood that about 1 100 VOTES of the FREE MEN of this STATE 
were committed to the fire unopened, and the scale of election turned. Such a 
calamitous event was never surely within the contemplation of either our constitution 
or laws. If both of them had been duly observed, such an event never could have 
occurred. Somebody therefore is highly in the wrong, and somebody is highly 
responsible for maladministration. If such an occurrence had not propagated alarm and 
enquiry among the people of this state, it would have argued that they either knew not 
the right of suffrage, or were insensible to its importance. 
N.Y. Daily Adver., Dec. 27, 1792. 

245. Young, supra note 27, at 320. 

246. Mat 320-21. 

247. Id. at 321-22. 

248. After the Federalists gained control of the legislature in April 1793, they adopted a 
resolution declaring that the complaints against Cooper's conduct had been "frivolous and 
vexatious." Hammond, supra note 27, at 82. But they did not then attempt to unseat Clinton even 
though his new gubernatorial term would not end until after the election of 1 795. See Alexander, 
supra note 148, at 61-62. They did attempt to deprive Governor Clinton of some powers of 
appointment, a partisan move that came back to haunt them once Jay won in 1795. See id. 
Hammond also chided the Federalists for their "unquestionably party vote" in attempting to 



2010] THE FOUNDERS' BUSH V. GORE 73 



If the Federalists had been in control of the legislature in the summer of 1792, 
would they have used this power in an effort to overturn the canvassing 
committee's decision, by means of calling a constitutional convention for this 
single purpose or otherwise? Hammond thought not: "I do not believe that such 
men as James Kent and many other federal members would, if they had had the 
power, have ventured at that time, by legislative enactments, to have declared the 
election of Gov. Clintonf] void. . . ," 249 Hammond has the advantage of temporal 
proximity, but the evidence on this point is hardly conclusive. The sentiment for 
unseating Clinton was very strong, 250 and it just might have been strong enough 
to propel the Federalists into legislative action if they had possessed that lever to 
push. In any event, one can never answer this kind of historical counterfactual 
question with any degree of certainty. 

What actually happened is that Jay decisively won the gubernatorial election 
of 1795. 251 Clinton did not even run again that year. 252 This electoral vindication 
of Jay proved Hamilton's strategy successful. Jay, Kent, and the other Federalists 
who felt robbed by the canvassing committee did not achieve in 1792 the 
electoral justice they were looking for in their initial responses to the committee's 
ruling. But by cooling their emotions and seeking eventual electoral vindication 
instead of immediate electoral justice, the Federalists were able the next time to 
gain the prize that they had been denied. 

V. The Aftermath of the Dispute 

Jay was elected governor in 1795 253 and re-elected in 1798, 254 using the same 
election laws that had defeated him in 1792. It was not until 1799 that the 
Federalists, who were still dominant in the state legislature but who were by then 
facing political storm clouds on the horizon, 255 made changes to the rules for 
canvassing votes in a gubernatorial election. 256 The changes are noteworthy, for 
they indicate some effort to correct the defects that led to the disaster of 1792. 
But these changes did not include an "equally biased" tribunal along the lines that 
Kent thought necessary in order to assure fairness to both parties in an electoral 



condemn the legislative investigation of Cooper. Hammond, supra note 27, at 82-83. Whether 
or not the charges against Cooper for misconduct at the Otsego polls in 1 792 were ever definitively 
proved to the extent that the Clintonians claimed, Hammond protests that "surely [they were] not 
frivolous." Id. at 83 (emphasis in original). 

249. Hammond, supra note 27, at 77. 

250. See ALEXANDER, supra note 148, at 60-6 1 . 

251. See id. at 65. 

252. Id. at 63. 

253. Id. at 65. 

254. Id. at 82-83. 

255. The Republicans' desire for less centralized government was gaining popularity with 
voters. See HAMMOND, supra note 27, at 1 15-20. 

256. See Act of Mar. 27, 1799, ch. 51, 1799 N.Y. Laws 362. 



74 INDIANA LAW REVIEW [Vol. 44:23 



dispute of this nature. 257 Even Kent himself apparently never pushed for this sort 
of reform, despite his recognition of its necessity. His failure to do so, along with 
the collective failure of his Founding Generation in this regard, is the major 
legacy of this episode. He and they saw partisan bias as the problem underlying 
the canvassing committee's decision, but he and they were unable to develop an 
institutional mechanism to solve that problem. 

One change that the 1 799 law made was to remove county sheriffs from the 
canvassing process. 258 More than that, however, the 1799 law altered the 
relationship between local and statewide officials in the counting and canvassing 
of gubernatorial ballots. Rather than having the local ballots themselves 
transmitted to the secretary of state, a procedure which triggered the 1 792 dispute, 
the 1799 law required that the "inspectors" of the polls in each locality "publicly" 
canvass the ballots themselves and "set down in writing" the canvassed votes for 
the gubernatorial candidates. 259 The statute then obligated these local "boards of 
inspection" to certify their written tallies and submit these certificates to the 
county clerk, as opposed to the sheriff. 260 Thereafter, the county clerk was 
required to submit these local certificates, instead of the ballots themselves, to the 
secretary of state. 261 

Given these provisions of the 1 799 statute, the nature of the statewide canvass 
necessarily was different — and much more limited — than it had been in 1792. 
The statewide canvassers could only "aggregate" all the local tallies and review 
the local paperwork for superficial accuracy. 262 Unlike in 1792, they had no 
ability to decide which local ballots would or would not be counted. In fact, the 
1799 statute ordered the local inspectors, "immediately" after completing the 
certificates of their local canvass, to "destroy the poll books and ballots made and 
taken at any such election." 263 Thus, although the Federalists in 1792 had been 
enraged by the immediate destruction of the ballots by the statewide canvassing 
committee, they now wanted the local officials to engage in the same kind of 
immediate ballot destruction so the statewide canvassers could never obtain them. 

The 1799 statute also changed the identity of the statewide officials 
responsible for this narrowly circumscribed statewide canvass. No longer was 
there a joint canvassing committee with six members from each chamber of the 
state legislature. Instead, a new state canvassing board consisted of three 
executive officials: the secretary of state, the treasurer, and the comptroller. 264 

Gone, too, was the earlier statutory language making the canvassing 



257. See Kent, supra note 62, at 44-45. A current proposal to implement the kind of tribunal 
that Kent suggested is outlined in Foley, supra note 67. 

258. See Act of Mar. 27, 1799, at 51, 1799 N.Y. Laws 362, 362-63. 

259. Id. 

260. Id. at 363. 

261. Id. 

262. Id. 

263. Id. 

264. Id. 



20 1 0] THE FOUNDERS ' BUSH V. GORE 75 



committee's 1792 ruling "binding and conclusive." 265 The new 1799 statute said 
"all questions" concerning the canvass "shall be determined by the opinion of a 
majority of the [new three-member] board." 266 The combination of removing the 
"binding and conclusive" language and the more ministerial nature of the three- 
person board's authority paved the way for the development of judicial review 
over this board's decisions during the nineteenth century. 

By making these changes, the Federalists may have thought that they had 
immunized canvassing process from the kind of partisan bias that tainted the 1 792 
election. If so, however, they were shortsighted. To be sure, the requirement of 
"publicly" canvassing at the local level was significant. As our nation has learned 
repeatedly throughout its history, the value of transparency in the administration 
of the electoral process is not to be underestimated. During the dispute over the 
2000 presidential election in Florida, this lesson was learned most forcefully 
when the so-called "Brooks Brothers riot" occurred after the local board in Miami 
decided to recount ballots behind closed doors. 267 Eight years later, in the dispute 
over Minnesota's U.S. Senate election, the lesson was learned much more 
positively when the state canvassing board conducted its recount proceedings in 
full public view, including televising it over the Internet. 268 

But the Federalists of 1799 were naive if they thought that transparent 
canvassing at the local level, with nothing more than ministerial tallying of local 
certificates by state officials, would be enough to prevent partisan bias from 
tainting the canvassing process in a high-stakes election with an apparently razor- 
thin margin. As ensuing years would eventually show, it would be possible in 
some circumstances to claim that partisan bias tainted the decisions of local 
election officials even if those decisions were required to be on public display. 269 
Moreover, if a dispute of statewide significance emerged over the allegedly 
improper conduct of local election officials, then what statewide institution would 
adjudicate that dispute, and would that institution itself be immune from partisan 
bias? Even if the underlying ballots were immediately destroyed (as required by 
the 1799 statute), 270 creative lawyers, working on behalf of competitive 
candidates determined to press any claim that might prevail, could concoct 
arguments that the local error required a new election or some other remedy. If 



265. Compare Act of Feb. 13, 1787, ch. 15, 1787 N.Y. Laws 371, 379, with Act of Mar. 27, 
1799, ch. 51, 1799 N.Y. Laws 362. 

266. Act of Mar. 27, 1799, ch. 51, 1799 N.Y. Laws 362, 364. 

267. See Dexter Filkins & Dana Canedy, Protest Influenced Miami-Dade 's Decision to Stop 
Recount, N.Y. Times, Nov. 24, 2000, at A41. 

268. Foley, supra note 121. 

269. For example, the famous photograph of a Florida ballot counter lifting his glasses to hold 
a punch-card ballot up to the light, readily available on a "Google images search," did nothing to 
assuage fears that this exercise of local discretion would improperly swing the 2000 presidential 
election for Gore. It was precisely this fear that caused the U.S. Supreme Court to rule that these 
local officials, despite the transparency of the process, had excessive administrative discretion 
under the Fourteenth Amendment. 

270. Act of Mar. 27, 1799, ch. 51, 1799 N.Y. Laws 362, 363. 



76 INDIANA LAW REVIEW [Vol. 44:23 



the statewide institution hearing that argument was predisposed to be sympathetic 
because of its members' partisan affiliations, then the risk of partisanship tainting 
the outcome of the election remained despite the reforms of 1799. 

It would not be until the middle of the nineteenth century that New York 
statutory law would build explicit bipartisan representation into the structure of 
its local electoral institutions 271 — and not until 1894 that New York would put 
this requirement of bipartisan representation into its constitution. 272 In 1799, 
however, the Founding Generation was not prepared to adopt this type of 
measure, despite Kent's prescient recognition of the need for a body with 
bipartisan balance. 273 

To build bipartisanship into the structure of an official canvassing board, 
whether state or local, would be to acknowledge the permanence — even 
acceptability — of two-party electoral competition to a degree that the Founders 
were never able to do. Kent might have wanted an equal number of Federalists 
and Clintonians on the statewide canvassing committee, 274 but he never said he 
wanted a law that would have specifically required an equal number of members 
from each party on whatever tribunal was authorized to decide whether or not to 
count the disputed Otsego ballots. To appoint a member of an adjudicatory 
tribunal (which Kent considered akin to a court) as an explicit representative or 
affiliate of a political party would have been anathema to his and the Founding 
Generation's sense of civic and judicial virtue. The temptation to use the power 
of an adjudicatory office to achieve a partisan victory should be overcome by a 
resolute commitment to the paramount obligation to act honorably in office. 

Ultimately, the Founding Generation saw the problem in 1 792 as primarily 
a personal deficiency in the degree of political virtue possessed by the members 
of the canvassing committee and those who appointed them, rather than a 
structural deficiency in the constitutional apparatus designed to compensate for 
the fact that "men are not angels," 275 and politicians are not always honorable. By 
1799, the Founding Generation surely knew that its system of government was 
afflicted by partisanship. Yet the Founders still hoped that at crucial moments 
partisan pressures and impulses would be resisted by honorable men acting on the 
basis of impartial virtue. They did not want to surrender to the cynical 
expectation that all political conduct, at least in the midst of electoral competition 
for premier positions such as governor or the President, would be based on 
partisanship rather than virtue. 

The best indication of the desire to hold on to the pre-partisan sense of 
obligation to impartial virtue comes from Jay himself. The setting was the 



27 1 . Delos F. Wilcox, Party Government in the Cities of New York, 4 POL. SCI. Q. 682 ( 1 899). 

272. Charles Z. Lincoln, 3 The Constitutional History of New York: 1 894- 1 905, at 
129-33(1906). 

273. See supra text accompanying note 67. 

274. See supra text accompanying notes 66-67. 

275. The Federalist No. 5 1 , at 262 (James Madison) ("If men were angels, no government 
would be necessary. If angels were to govern men, neither external nor internal controls on 
government would be necessary."). 



2010] THE FOUNDERS' BUSH V. GORE 11 



presidential election of 1 800. By May of that year, it became apparent that New 
York would prove decisive in the Electoral College battle between Adams, the 
Federalist candidate for reelection, and Jefferson, the Democratic-Republican 
challenger. 276 During the previous month's legislative elections in New York, the 
Democratic-Republicans won a decisive majority of seats. 277 Because New York 
at the time permitted its legislature to appoint the state's presidential electors, 
everyone knew that all of New York's Electoral College votes were posed to go 
to Jefferson, not Adams. 278 In response, Hamilton formulated a plan that would 
enable Adams to win at least some of New York's Electoral College votes: 
Governor Jay would call the lame-duck, Federalist-controlled, legislature back 
into session to pass a statute that would divide the state into electoral districts, 
resulting in a popular vote for one of the state's presidential electors in each 
district. 279 Because certain parts of the state were still dominated by Federalists, 
the lame-duck legislature could draw the district lines in a way that would 
position Adams to win as many as half of the state's twelve Electoral College 
votes, 280 thereby likely giving Adams an outright overall Electoral College 
majority nationwide. It was an ingenuous scheme, one worthy of Hamilton as the 
brilliant partisan tactician, who raised it with Jay in a letter. 281 

Jay, to his credit, would have none it. He wrote on the back of Hamilton's 
letter: "Proposing a measure for party purposes, which I think it would not 
become me to adopt." 282 In 1800, therefore, Jay was able to resist partisanship 
and act instead based on his conception of impartial virtue. His decision made 
a difference. If he had cooperated, and the lame-duck legislature had acted 
according to Hamilton's plan, then Adams would have won a majority of 
Electoral College votes. 283 

Jay's decision to act honorably in 1800 may have been affected by the 
partisan cause of his own defeat in 1 792. At least one historian has suggested this 
link: 

Jay was a stalwart Federalist. . . . [H]e regarded the advent of Jefferson 
and his ideas with as much alarm as Hamilton, and he knew as well as 
Hamilton that the adoption of the district plan of choosing electors would 
probably defeat the Virginian; but to call an extra session of the 
Legislature for the purpose indicated by Hamilton, would defeat the 



276. See Weisberger, supra note 12, at 229. 

277. 3 JAY, supra note 1 34, at 4 1 1 . 

278. See HAMMOND, supra note 27, at 144; WEISBERGER, supra note 12, at 238-39. 

279. See 3 JAY, supra note 134, at 412-13. 

280. Even if Adams could not win half of the electoral votes, districting would have assured 
him at least four electoral votes. See Hammond, supra note 27, at 144-45. 

281. 3 Jay, supra note 134, at 412-14. 

282. Hammond, supra note 27, at 145. 

283. 3 Jay, supra note 134, at 41 1-14. As it was, Adams fell short, and Jefferson ended up 
in a tie with Burr, which sent the election to the U.S. House of Representatives. Weisberger, 
supra note 12, at 256-57. 



78 INDIANA LAW REVIEW [Vol. 44:23 



expressed will of the people as much as the action of the state canvassers 
defeated it in 1792 ? M 

The point of this passage is clear. It is not that Jay was lacking in strong partisan 
impulses; rather, he was able to overcome those impulses because of his fidelity 
to what he believed honor required of him, and his sense of honor was reinforced 
by his own experience in 1792. Rather than making Jay vengeful, his defeat at 
the hands of the canvassing committee bolstered his own commitment to do the 
right thing when he was in a similar position to affect the outcome of a major 
election. As this historian summed it up, Jay "wisely refused to do what the 
people of the State had so generally and properly condemned in the 
canvassers." 285 

But Jay's heroic act of virtue and resistance of partisanship in 1800 signifies 
the end of an era rather than an example that others would follow in years to 
come. "[N]ot a governor who followed Jay in these eventful years," the same 
historian acknowledged, "would have declined under similar circumstances to 
concur in Hamilton's suggestion." 286 The use of official power for partisan 
electoral objectives quickly became the norm and expectation. 

Yet the election law of 1799 was not written to handle that development. It 
was a product of an earlier era, when there was still some lingering sentiment that 
officials might act like Jay did in 1 800. The Founding Generation simply did not 
equip New York, nor the nation, for what was needed in a world where 
partisanship reigned with no resistance from virtue. 

VI. The Lessons for Us of 1 792 

Our own generation knows what it is like to have partisanship — or at least the 
appearance of it — taint the adjudication of a major disputed election. Whether 
we supported Bush or Gore, we were embarrassed by the fact that the U.S. 
Supreme Court split 5-4 and did so after the Florida Supreme Court split 4-3, with 
both tribunals (despite their opposite outcomes) seemingly affected by the 
partisan allegiances of their majorities. We can easily imagine, then, how Jay and 
his supporters must have felt when they saw themselves dealt the injustice of a 
partisan 7-4 canvassing committee decision. We can imagine, too, the 
embarrassment that some of Clinton's supporters, including his Virginian allies, 
felt by the partisan way in which he received his electoral victory. 

From our vantage point, now a decade after Bush v. Gore, we know also the 
experience of letting several electoral cycles pass without addressing the 
institutional inadequacies that enable the taint of partisanship to occur. To be 
sure, we have eliminated hanging chads, butterfly ballots, and some of the other 
features of our voting process that provided the foundation for Bush v. Gore to 
occur. But those operational reforms are much like eliminating sheriffs from the 
voting process, as New York did after 1792. Changing the rules for operating 



284. Alexander, supra note 148, at 98-99 (emphasis added). 

285. Id. at 93. 



285. Mat 93. 

286. Id. 



2010] THE FOUNDERS' BUSH V. GORE 79 



the voting process does not by itself prevent partisan bias from controlling the 
resolution of any dispute that might arise concerning the process. Some grounds 
for a potential dispute are gone. For example, there is now no more fighting over 
hanging chads, just like there is no more fighting over the transmission of ballots 
by sheriffs whose commissions have expired. Yet, as we surely understand after 
Minnesota's experience in 2008, eliminating some grounds for a potential dispute 
does not eradicate all such grounds. Franken and Coleman learned that they 
could conduct the same basic dispute over absentee ballots that Bush and Gore 
did over hanging chads. 287 Thus, as a nation, we stand today as New York did in 
1 800 — the electoral reforms that we have adopted in response to the relatively 
recent crisis still leave us vulnerable to a new episode in which the partisan bias 
of incumbent officials dictates the outcome of a dispute over the rules governing 
a major election. 

Now a decade into the twenty-first century, we are unlikely to find a John Jay 
whose virtue in office would save us from this institutional vulnerability. As a 
nation, since 1 800 we have lived through two centuries of incessant two-party 
electoral competition for the presidency and other high offices. We know also 
that this two-party competition is not merely permanent; it is, in an important 
sense not recognized by the Founders, appropriate. Today, neither Democrats nor 
Republicans are disloyal to the Republic and its Constitution. By contrast, in the 
1790s, both Federalists and Democratic-Republicans thought the other party was 
betraying the principles they had just enshrined in 1787. Today, Democrats and 
Republicans offer the electorate a choice between left-of-center and right-of- 
center policies, which the electorate is entitled to oscillate between depending on 
its collective mood. Thus, we can accept in a way that the Founders could not 
that politicians inevitably will be partisans — and therefore, fair electoral 
competition between the two parties requires an institution that protects the 
resolution of disputed elections from becoming hijacked by politicians from 
either party seeking an electoral advantage. Unlike the Founders living under the 
beginning of their own regime in 1790s, we can readily see now that we lack this 
kind of institution, but that we very much need one. 

Looking to the future, as we endeavor to design this missing piece of 
constitutional architecture and figure out how procedurally to put it into place, we 
can ask ourselves what particular lessons we should draw from New York's 
disputed election of 1792. We should not attempt, of course, to learn from this 
one episode alone. We should instead consider it in the context of the full sweep 
of disputed elections in U.S. history. 288 That history includes, most prominently, 



287. In 2010, we are again learning that, much to our surprise, it is also possible to re-wage 
these basic battles over the spelling of write-in candidates. See supra note 120. 

288. The historian Alexander, writing in 1906, likened the furor over the canvassing 
committee's ruling in 1792 as comparable to the commotion that would later occur in the Hayes- 
Tilden election of 1876: "[T]he people of the State were aroused to the wildest passion of rage, 
recalling the famous Tilden-Hayes controversy three-quarters of a century later." Alexander, 
supra note 148, at 59. Federalists called Clinton "the Usurper," just as Democrats later would call 
Hayes "His Fraudulency." Id. at 61. 



80 INDIANA LAW REVIEW [Vol. 44:23 



the Hayes-Tilden election at the time of the nation's centennial. It now also 
encompasses Bush v. Gore as well as, most recently, Coleman v. Franken. The 
future should be built on lessons learned from the entire past. 

Still, the Clinton-Jay dispute of 1792 was the nation's first major dispute of 
its kind and, therefore, teaches some distinctive truths. Some of these truths, 
although significant, are less weighty than others. One such truth is the inevitable 
propensity towards litigation as partisans attempt to prevail on legal grounds 
when a close election is mired in a ballot-counting dispute. As we have seen, 
large legal teams were assembled on both sides in 1792, long before they were 
in 2000 or 2008. When designing an electoral dispute resolution system for the 
future, we should accept this propensity rather than wish it would disappear. 

Indeed, we should be grateful that candidates turn to lawyers rather than 
soldiers to fight their battles for control of the coveted high offices during 
electoral disputes. Relying on attorneys indicates a willingness to settle the 
dispute according to the rule of law rather than through the force of arms. 
Perhaps the most positive feature of our nation's experience with disputed 
elections is that, apart from some notable exceptions in the nineteenth century, 289 
we have largely escaped the need to rely on troops to quell civil unrest during a 
dispute over an electoral outcome. Even when candidates have been convinced 
that the legal procedures used to resolve the dispute were deeply flawed (or, 
worse, corrupted by partisan bias), they have largely decided to accept the result 
that the legal procedures generated simply because the result emanated from those 
legal procedures . 

Respect for the rule of law is usually enough to cause a candidate to abide by 
the deeply flawed result. The Hayes-Tilden dispute was one such situation. 
Tilden considered the 8-7 vote of the Electoral Commission against him both 
corrupt and unconstitutional — and yet the Commission had been established by 
a procedurally proper act of Congress, and its constitutionality had not been 
challenged in a judicial forum. 290 Thus, the Commission's ruling had all the 
authority of a final Supreme Court decree, and Tilden was not about to challenge 
it. Likewise, Gore and his advisers undoubtedly considered the majority decision 
in Bush v. Gore egregiously wrong if not corrupt, yet it was the product of a 
conventional writ of certiorari to the Court and thus within the scope of the 
Court's jurisdiction under law (however improperly that jurisdiction might have 
been exercised). 291 

In much the same way, Jay and his legal advisers eventually accepted the 
canvassing committee's 7-4 ruling (even though they considered it egregiously 
corrupt) because it fell within the committee's jurisdiction under the then-existing 
election law. In this respect, as some of them recognized at the time, they set an 
important precedent in favor of settling disputed elections through the rule of law 



289. The book that Steven Huefher and I are writing will discuss these nineteenth-century 
exceptions, including the so-called Buckshot War in Pennsylvania and the Brooks-Baxter War in 
Arkansas. Our historical research on those episodes is currently in progress. 

290. See Colvin & Foley, supra note 2, at 5 1 5- 1 6. 

29 1 . See generally TOOBIN, supra note 74. 



20 1 0] THE FOUNDERS ' BUSH V. GORE 8 1 



rather than by resorting to violence. Consider how differently American history 
might have unfolded if Jay had captured the governor's office through the use of 
force in 1792, or even if he had simply attempted to do so but his use of force had 
been crushed. Jay's self-restraint, conversely, may have helped to pave the way 
for similar self-restraint by Tilden and Gore, among others. 

Another lesson to be learned from the Clinton- Jay dispute of 1 792 concerns 
the deep-rooted nature of the jurisprudential debate between strict and lenient 
enforcement of election statutes. As a review of the 1 792 dispute reveals, this 
basic jurisprudential debate has been with us from the very beginning. The 1 792 
dispute also demonstrates that this jurisprudential debate involves competing 
interpretations of our nation's most elementary commitment to the existence of 
democratic elections. Proponents of both strict and lenient enforcement appeal 
to the fundamental value of a free and fair vote among citizens. Yet each side of 
this jurisprudential debate appeals to this fundamental value in a different way. 

As a nation, we are essentially stuck in the same place regarding this debate 
as we were in 1792. The arguments on each side in 2000 and 2008 between strict 
and lenient enforcement were not much more advanced or sophisticated than they 
were in 1792. Bush and Franken urged strict enforcement to protect the integrity 
of the voting process, just as Clinton's supporters did in 1792, and neither added 
significantly to that side of the debate to what Randolph eloquently wrote on 
behalf of Clinton. Similarly, Gore and Coleman urged lenient enforcement, like 
Jay's team did, but none of their arguments against voter disenfranchisement 
were more nuanced or elaborate than what Trumbull said in support of Jay. 

Thus, in the future, if the debate between strict and lenient enforcement is to 
move beyond the same recitation of these two ancient arguments, there will need 
to be some mechanism to explain the circumstances in which strict enforcement 
should prevail as opposed to where lenient enforcement controls. A promising 
development along these lines is the idea that a respected jurisprudential body 
like the American Law Institute might formulate a code or set of principles to 
elucidate these respective situations. This nationally formulated code or set of 
principles might then become adopted seriatim in the several states. This could 
become increasingly refined as more and more states settle more and more 
disputes according to precedents set within this evolving body of collective 
wisdom, rather than falling back upon the generic debate between strict and 
lenient enforcement. Hopefully, well-reasoned positive law for the resolution of 
disputed elections might emerge from this process, along the lines hinted at by 
James Monroe's observation of the 1792 dispute in New York. 

But even if a well-reasoned corpus of law emerged from this kind of process, 
each state would need an institution that could be entrusted with the fair-minded 
and evenhanded application of this jurisprudence to whatever particular disputed 
election might next occur. As James Kent could attest, what good is a well- 
reasoned corpus of election law if it is susceptible to manipulation by an 
authoritative tribunal bent on achieving a partisan outcome? Thus, a major lesson 
to be learned from 1792 is one that we already know: we need impartial 
institutions to adjudicate high-stake disputed elections like the presidential 
election of 2000 or Minnesota's U.S. Senate election of 2008. We need these 
impartial institutions to be structured so that they will not be, or appear to be, 



82 INDIANA LAW REVIEW [Vol. 44:23 



predisposed to tilt their decisions towards one candidate or another based on the 
partisanship of the governing body. 

As important as this institutional lesson is, perhaps an even more important 
lesson to learn from 1792 is why our nation was not given this kind of institution 
from the beginning and thus why, insofar as we still do not have one for disputed 
presidential elections, we are obligated to create one for ourselves and our 
posterity. Simply put, two-party electoral politics were too new to the Founders 
in the 1790s for them to address this institutional need. That fact, plus their 
inexperience with chief executive elections, meant that they were entirely 
unprepared for partisan influences in a disputed gubernatorial — or 
presidential — election. They gave no thought to what tribunal would be 
appropriate in the event that the outcome of a presidential election turned on a 
dispute over ballots cast for a state's presidential electors. 

The fact that the Founders failed to anticipate this need does not mean that 
it is not necessary. On the contrary, members of the Founding Generation who 
lived through the first few decades of the nineteenth century began to understand 
their omission and its significance. Late in life, Madison himself acknowledged 
that the Framers of the Constitution had given too little attention to the topic of 
presidential elections. 292 

Even more on point, when Kent wrote his famous Commentaries on 
American Law in the 1820s, he expressly acknowledged that the Framers had 
failed to consider the possibility of a partisan dispute in the context of counting 
Electoral College votes for president. Undoubtedly reflecting his own experience 
in New York's disputed gubernatorial election of 1792, Kent ominously wrote 
that a similar type of dispute in a presidential election "will eventually test the 
goodness[] and try the strength of the [Constitution." 293 In other words, Kent 
knew that there was a serious hole in the electoral infrastructure created by the 
Constitution and that the Republic would be vulnerable unless and until this gap 
were filled. 

A few years later, another prominent constitutional scholar of the early 
Republic, Joseph Story, picked up on Kent's point and amplified it. Story himself 
had lived through a disputed gubernatorial election in Massachusetts in 
1 806 — which, like New York's in 1792, had become mired in partisan efforts to 
manipulate the outcome by disqualifying ballots of eligible voters. Knowing his 
own experience there, as well as New York's earlier episode, Story expressed 
even more concern about the possibility of a disputed presidential election than 
Kent had. Although the Framers of the Constitution had made "[n]o provision" 



292. See Donald O. Dewey, Madison 's Views on Electoral Reform, 1 5 W. POL. Q. 1 40 ( 1 962) 
(discussing letters Madison wrote in the 1 820s advocating reforming the Electoral College system). 
Madison's letter of August 23, 1823 to George Hay expressly acknowledged Madison's subsequent 
judgment that the Constitutional Convention of 1 787 did not give adequate attention to the method 
of presidential elections: "as the final arrangement [for presidential elections] took place in the 
latter stage of the Session, it was not exempt from a degree of the hurrying influence produced by 
fatigue and impatience in all such Bodies." 

293. James Kent, 1 Commentaries on American Law 273-74 (3d ed. 1836) (1826). 



2010] THE FOUNDERS' BUSH V. GORE 83 



for the problem because it simply had not occurred to them, Story found it "easily 
to be conceived that very delicate and interesting questions may occur, fit to be 
debated and decided by some deliberative body." 294 

Therefore, the point is that we must build for the future what the Founders 
themselves were unable to build for us. In doing so, we would not be 
contravening their vision for a well-ordered republic. Instead, by adding a 
missing but crucial piece of constitutional architecture that they omitted, we 
would be enhancing the project of constitutional democracy that they began for 
us. 

Madison, Jay, Kent, and the other Founders all wanted the operation of 
constitutional democracy to satisfy justice according to impartial standards. They 
emphatically did not want their handiwork to become sullied by partisan avarice. 
Jay, the author of New York's constitution, certainly did not anticipate that the 
competition to win a gubernatorial election would become an unfair fight because 
of partisan manipulation of the institutions established under his constitution. 

It turns out that the Founders did not know how to achieve their own 
objectives in the context of a disputed election for chief executive. Only later 
would Founders, like Madison and Kent, recognize the need to update their 
project. Therefore, accepting the invitation of these Founders themselves, we 
must complete their own work by adding the kind of impartial institution for 
adjudicating disputed elections that they originally could not foresee as necessary. 



294. Joseph Story, Commentaries on the Constitution of the U.S. 327 ( 1 833). 



84 INDIANA LAW REVIEW [Vol. 44:23 

Appendix 

Timeline of 1792 Election Dispute 

Jan. 13 Smith sends resignation 

Feb. 18 Smith's commission expires 

March 30 Gilbert's commission issued 

April 3 Smith elected town supervisor 

April 24-28 balloting; Smith supervises polls 

April 30 Van Rensselaer gives commission to Cooper 

May 1 in new job, Smith rules on ballots 

April 29-May 3 ballots in Smith and Cooper's store 

May 3 as sheriff, Smith deputizes Goes 

May 1 1 Cooper gives Gilbert commission 

May 29-June 12 canvassing committee meets 

June 12 Federalists begin to explore options 

June 15 "Gracchus" calls for public agitation; unrest begins 

June 27-29 Madison, Monroe write their views about the NY dispute 

July 1 Clinton inaugurated for new term 

July 2 Jay in Albany seems willing to challenge Clinton's victory 

July 10 King writes of Jay's single-purpose convention plan 

July 16 Jay in New York City backs away from challenge 

July 25 Hamilton writes King to oppose Jay's convention plan 

Aug. 24 Troup tries to rekindle Federalist challenge; Hamilton 

nixes it 



"Celebrating" the Tenth Anniversary of the 2000 

Election Controversy: What the World Can 

Learn from the Recent History of Election 

Dysfunction in the United States 



Nathaniel Persily* 



Introduction 

For scholars in the United States who study election law and administration, 
the 2000 presidential election represented a watershed event. It humbled those 
who thought that the world's leading democracy had mastered the mechanics of 
running an election. It also generated interest to look outward for best practices 
and models to emulate. When U.S. scholars and reformers did so, however, we 
realized that certain intransigent structural features of the U.S. political system 
made reform particularly challenging. By highlighting these obstacles, however, 
this exploration of different modes of administration lent itself to an assessment 
of the various dimensions of the problem that all democracies encounter. This 
Article describes the multiple facets of the election administration "problem" that 
all democracies confront, in light of the decade of introspection the United States 
has undertaken. 

This Article begins by summarizing the controversy that led to the current era 
of reform of the U.S. electoral system. It then moves to a discussion of the 
categories of administrative and technical challenges that all successful 
democracies must confront on some level. It then concludes with a description 
of metrics by which we can measure democratic success. 

Before entering into that discussion, it may be worth summarizing three 
features of the U.S. electoral system which exist to a greater or lesser extent in 
other countries, but which, in combination, make reform particularly formidable 
for the United States. The first glaring institutional feature evident to even the 
most casual observer of the U.S. electoral system is the extreme decentralization 
of administrative responsibilities and policymaking. 1 Most decisions concerning 



* Charles Keller Beekman Professor of Law and Political Science, Columbia Law School. 
Thanks to Michael Pitts for helpful comments. Thanks to Shawn Crowley and Jessica Riggins for 
excellent research assistance. This Article is adapted from lectures given to the Electoral Institute 
of Veracruz, Mexico, on October 15-16, 2009. 

1 . Eric A. Fischer & Kevin J. Coleman, Cong. Research Serv., Election Reform and 
Local Election Officials: Results of Two National Surveys 1 (2008), available at http:// 
www.fas.org/sgp/crs/misc/RL34363.pdf; Heather K. Gerken, The Democracy Index: Why 
Our Election System Is Failing and How to Fdc It 1 (2009); Richard L. Hasen, Beyond the 
Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 
WASH. & LEE L. Rev. 937, 952 (2005); George M. Guess, Dysfunctional Decentralization: 
Electoral System Performance in Theory and Practice 6 (Ctr. for Democracy and Election Mgmt., 
Working Paper No. 6, Apr. 20, 2009), available at http://wwwl.american.edu/ia/cdem/pdfs/ 
Dysmnctional%20Decentralization%204-20.pdf. 



86 INDIANA LAW REVIEW [Vol. 44:85 



election administration are made at the local, usually county, level. 2 Localities 
are most often in charge of decisions concerning ballot design and technology, 
as well as those dealing with polling place allocation and administration. 3 The 
result is a patchwork quilt where the quality of democracy often varies according 
to the fortuity as to where one lives. 4 

Related to the emphasis on localized control is the reliance on relatively 
untrained volunteers as the point of contact for most voters on Election Day. For 
the most part, the people manning the polling places and overseeing the voting 
process are unpaid volunteers who have had minimal (a few hours worth of) 
training. 5 In contrast to countries where civil servants administer the polls or 
citizens are chosen by lot, 6 the United States relies on volunteers, often 
individuals chosen or courted by the political party leaders competing in the 
election. 7 

Indeed, the extent to which partisans — either elected or appointed — are in 
charge of U.S. elections at the state level sets the United States apart from 
virtually all other democracies. 8 This unenviable distinction seems to be the most 
entrenched and pernicious of the three pathologies — excessive decentralization, 



2. Fischer & Coleman, supra note 1 , at 1 . 

3. Id.; U.S. Elections Procedures: Reforming the System Will Help America Vote Act, 
America.GOV (Apr. 2, 2008), http://www.america.gov/st/usg-english/2008/April/200804232243 1 8 
eaifas0.8196635.html. 

4. See Hasen, supra note 1 , at 952; see also David C. Kimball & Martha Kropf, The Street- 
Level Bureaucrats of Elections: Selection Methods for Local Election Officials, 23 REV. OFPOL'Y 
Res. 1257, 1258 (2006) (identifying different reasons why elections are implemented differently 
in different locations). 

5 . See Hasen, supra note 1 , at 953 ; see also Deborah Hastings, High Voter Turnout Ups Risk 
of Election Day Errors, USA TODAY, Feb. 25, 2008, available at http://www.usatoday.com/ 
news/politics/2008-02-24-pollworker-problems_N.htm; Alan Wirzbicki, Lines, Malfunctions, and 
Untrained Poll Workers Plague Some States, Bos. Globe, Nov. 8, 2006, available at 
http://www.boston.eom/news/nation/articles/2006/l l/08/lines_malfunctions_and_ 
untrained_poll_workers_plague_some_states/; Michael C. Dorf, Florida Strikes Again: What the 
Latest Election Snafu Says About Machines and Humans, FindLaw (Sept. 18, 2002), 
http://writ.news.findlaw.com/dorf/20020918.html; Heather Gerken, The Invisible Election, 
Election L. Blog (Nov. 16, 2008, 5:10 PM), http://electionlawblog.org/archives/012471.html. 

6. Ctr. for Democracy & Election Mgmt., Building Confidence in U.S. Elections: 
Report of the Commission on Federal Election Reform 55 (2005), available at http://wwwl . 
american.edu/ia/cfer/report/full_report.pdf. 

7. See Christian M. Sande, Where Perception Meets Reality: The Elusive Goal of Impartial 
Election Oversight, 34 Wm. MITCHELL L. Rev. 729, 730 (2008); see also Kimball & Kropf, supra 
note 4, at 1261 (finding that most local election officials are partisan elected administrators). 

8. R. Michael Alvarez et al., Who Should Run Elections in the United States?, 36 Pol'Y 
STUD. J. 325, 328 (2008); Shaheen Mozaffar & Andreas Schedler, The Comparative Study of 
Electoral Governance— Introduction, 23 Int'l Pol. Sci. Rev. 5, 16-17 (2002) (identifying 
democracies that have established "structures of mutual restraint" in which political parties "concur 
in the appointment of members of the national election commission"). 



20 1 0] WHAT THE WORLD CAN LEARN 87 



unprofessional management of the polling place, and partisan control of election 
administration at the state level — of the U.S. electoral system identified here. 9 To 
highlight the most telling example of this phenomenon, during the 2000 election 
controversy in Florida, the elected secretary of state, who was the chief supervisor 
of the elections in the state, was also the co-chair of the campaign of one of the 
candidates (George W. Bush). 10 For some reason, the states have had very 
limited success in creating authentic nonpartisan institutions to oversee the 
administration of elections. 11 Actual, apparent, or alleged bias has thereby 
become an expected feature of every critical decision made by states' chief 
elections officers. 12 This is particularly true when the decisions concern recounts 
or other exercises of discretion after the votes have been cast and when the likely 
beneficiaries of such decisions are well-known. 13 Even before the vote, however, 
decisions concerning voter registration, eligibility, or ballot access will be seen 
as advancing partisan interests if a partisan official is the decision maker. 14 

I. Crisis and Reform: Lessons from the 2000 Presidential Election 
Controversy and Its Aftermath 

It often takes a crisis to expose the fragility of a system that under normal 
circumstances appears stable and relatively problem-free. The 2000 U.S. 
presidential election presented such a crisis, and it illustrated a number of 
problems with the American electoral system. For election lawyers, the crisis is 
often viewed through the lens of the Supreme Court's resolution of Bush v. Gore: 
a controversial decision that focused on the constitutional problems inherent 



9. See Bennett J. Matelson, Note, Tilting the Electoral Playing Field: The Problem of 
Subjectivity in Presidential Election Law, 69 N.Y.U. L. REV. 1238, 1276-77 (1994). 

10. Sande, supra note 7, at 733. 

1 1 . Kimball & Kropf, supra note 4, at 1 263 ("We find that while public opinion indicates that 
an elected nonpartisan board of elections is the most preferred local election authority by a national 
sample of citizens, our data indicate that common practice is not consistent with public opinion." 
(internal citation omitted)). 

12. See Hasen, supra note 1, at 938-42, 958; Sande, supra note 7, at 733-38. 

1 3 . Richard L. Hasen, Eight Years After Bush v. Gore, Why Is There Still So Much Election 
Litigation and What Does This Mean for Voter Confidence in the Electoral Process?, FindLaw 
(Oct. 20, 2008), http://writ.news.findlaw.com/commentary/20081020_hasen.html. 

14. See, e.g., Crawford v. Marion Cnty. Election Bd., 533 U.S. 181, 191, 203 (2008) 
(upholding newly-enacted voter identification laws which plaintiffs contended were in part 
motivated by partisan interests and noting that the rules were supported by all Republicans in the 
General Assembly and not a single Democrat); Hasen, supra note 1, at 945; see also Editorial, A 
Step for Voting Reform, NATION, Jan. 31, 2005, at 4, available at http://www.thenation.com/doc/ 
2005013 1/ editors2 (calling for election reforms that include "nonpartisan election administration 
. . . technology that can be examined by people outside the companies providing it and a secure 
paper trail on all votes cast . . . [and] a nonpartisan national election commission ... to evaluate 
the accuracy and representativeness of our election performance regularly and make 
recommendations for improvement"). 



88 INDIANA LAW REVIEW [Vol. 44:85 



when recounts of paper ballots are not conducted according to uniform 
standards. 15 But the controversy entailed so much more than its final resolution 
would suggest, and its lessons for the United States and other countries should not 
be limited to the headlines created to describe its final resolution. 16 The crisis 
highlighted the three meta-problems described above — decentralization, partisan 
administration, and incompetence of varying forms. But it also forced us to think 
about critical questions of ballot design and technology, voter error, registration 
problems, absentee ballots, and classic barriers to access. 17 

There are many ways to tell the story of the 2000 election controversy, but 
few will seem relevant to an international audience seeking lessons that can be 
universalized for other electoral systems. At its core, the 2000 election revealed 
that in close contests within the margin of human or mechanical error, all aspects 
of the system may appear dysfunctional. Beyond that, however, the sheer variety 
of mishaps exposed the multiple dimensions of an "election ecosystem" 18 that 
must perform well when the system is under stress. What follow are short 
descriptions of the individual problems discovered in 2000 and the reforms 
enacted or discussed in the wake of the controversy. Each situates the American 
experience in an international context, describing some phenomena and 
regulations that are unique and others that are more widely shared. 

A. Voter Registration 

The United States is unique among democracies in the relative absence of 
government-initiated action to register voters. 19 The burden of registration falls 



15. See generally Richard L. Hasen, A Critical Guide to Bush v. Gore Scholarship, 7 Ann. 
Rev. Pol. Sci. 297 (2004) (summarizing legal scholars' writings on the Supreme Court's Bush v. 
Gore opinion). 

16. See, e.g., Elizabeth Garrett, Institutional Lessons from the 2000 Presidential Election, 29 
Fla. St. U. L. Rev. 975, 976 (2001). 

1 7. Helen Norton, What Bush v. Gore Means for Elections in the 21st Century, 2 Wyo. L. 
Rev. 4 1 9, 420-22 (2002); see also Jo Becker & Dan Keating, Problems Abound in Election System: 
Outmoded Machinery Is Still Widespread, WASH. POST, Sept. 5, 2004, at Al (highlighting main 
problems that arose in the 2000 election and explaining how many have still not been resolved); 
Bad Ballot Design Results in Staggering Numbers of Lost Votes, BRENNAN Ctr. FOR JUSTICE (July 
21, 2008), available at http://www.brennancenter.org/content/resource/bad_ballot_design_ 
results_in_staggering_ numbersoflostvotes/. The Center reported: 

In the most egregious and well-known case, the "butterfly ballot" used in Palm Beach 
County, Florida during the 2000 presidential election, the presidential race was split into 
two columns, which . . . likely caused more than 2,000 Democratic voters to mistakenly 
vote for Pat Buchanan and threw out an additional 20,000 votes due to double- 
voting — in a race that was decided by fewer than 600 votes. 

18. See Steven F. Huefner et al., From Registration to Recounts: The Election 

ECOSYSTEMS OF FIVE MIDWESTERN STATES 11-17 (2007). 

19. See generally JENNIFERS. ROSENBERG & MARGARET Chen, BRENNAN CTR. FOR JUSTICE, 

Expanding Democracy: Voter Registration Around the World 9 (2009), available at 



20 1 0] WHAT THE WORLD CAN LEARN 89 



almost exclusively on the voter, although the actual requirements vary from state 
to state. This allocation of burdens has great consequences for the U.S. 
population, which is one of the most mobile in the world with more than a quarter 
of the population moving every two years. 20 Whenever citizens in most states 
change their address, they must re-register with the local government if they wish 
to vote in their new community. 21 As a result, demographic characteristics that 
negatively correlate with mobility (such as age and education) are also powerful 
predictors of voter turnout. 22 More importantly, the frequent movement of U.S. 
citizens presents great challenges to maintaining reliable registration lists. 23 
Different states have adopted different strategies to "purge" ineligible, deceased, 
or no longer resident voters from their lists. 24 

The criticism lodged against Florida in 2000 was that the state, in an effort 
to clear felons from its list of registered voters, purged a number of legitimate 
voters as well. 25 Although many countries in the world allow prisoners to vote, 
only two American states do, 26 and some, such as Florida, disenfranchise many 
felons for extended periods even after they have served their time in prison. 27 The 
state purged voters with names that matched a list of felons, but that purge list 



http://www.brennancenter.org/content/resource/expanding_democracy_voter_ 
registrationaroundtheworld/; see also Martin P. Wattenberg, Where Have All the Voters 
Gone? 16 (2002) ("It is frequently said of American voter registration that it places a greater 
burden on those seeking to vote than do the requirements of any other democracy."); Craig Leonard 
Brians & Bernard Grofman, Election Day Registration 's Effect on U.S. Voter Turnout, 82 Soc. SCI. 
Q. 170, 170 (2001) ("Among modern democracies, U.S. voter registration provisions require a 
nearly unique degree of individual citizen responsibility, encumbering Americans with greater 
turnout costs."). 

20. Peverill Squire et al., Residential Mobility and Voter Turnout, 8 1 Am. POL. Sci. Rev. 45, 
45-46 (1987) (finding that the increased mobility of the U.S. population is directly correlated with 
low voter turnout rate). 

21. Wendy Weiser et al., Brennan Ctr. for Justice, Voter Registration 
Modernization: Policy Summary 1 (2009), available at http://brennan.3cdn.net/b75fl341338 
8b2fccc_ynm6bn 1 12.pdf. 

22. See id. at 5; John A. MacLeod & Merle F. Wilberding, State Voting Residency 
Requirements and Civil Rights, 38 GEO. WASH. L. REV. 93, 95 (1969). 

23. See Squire et al., supra note 20, at 46. 

24. Id. ; see also Weiser et al., supra note 2 1 , at 5 . 

25 . Guy Stuart, Databases, Felons, and Voting: Bias and Partisanship of the Florida Felons 
List in the 2000 Elections, 1 19 POL. SCI. Q. 453, 469-73 (2004); Gregory Palast, Florida 's Flawed 
"Voter-Cleansing" Program, Salon (Dec. 4, 2000, 10:19 PM), http://www.salon.com/ 
news/politics/feature/2000/ 1 2/04/voter_f ile/. 

26. Wilson Ring, Vermont, Maine Only States to Let Inmates Vote, BOS. GLOBE (Oct. 22, 
2008), http://www.boston.com/news/local/maine/articles/2008/10/22/vermont_maine_only_states_ 
toletinmatesvote/. 

27. Erik Eckholm, States Are Growing More Lenient in Allowing Felons to Vote, N.Y. TIMES 
(Oct. 12, 2006), http://www.nytimes.com/2006/10/12/us/12felons.html ("[T]hree states, Florida, 
Kentucky and Virginia, still have lifetime bans on voting by felons."). 



90 INDIANA LAW REVIEW [Vol. 44:85 



also contained many legitimate voters, which Democrats argued included a 
disproportionate number of African Americans. 28 

In the wake of the 2000 election, Congress adopted two principal reforms to 
deal with registration problems. The Help America Vote Act established a 
system of statewide voter registration lists and provisional balloting. 29 States 
were required to establish a single authoritative automated list of registered voters 
that could be publicly scrutinized. 30 Indeed, in this respect, the United States 
became more like other countries in which such lists are nationally centralized. 31 
Because the federal government plays a very small role in voter registration, 
however, this function was centralized at the state level. 32 While still an oddity 
as a comparative matter, this was an improvement over the previous system, 
where such lists may have been kept by county officials. 33 

The second innovation — provisional ballots — was seen as a way of solving 
the problem of voters incorrectly turned away from the polls. 34 By allowing 
voters whose registration status was in question to cast provisional paper ballots 
that were segregated from the normal ballots, the system would leave the question 
as to whether such ballots should be counted until after the election. 35 Such a 
system recognizes the difficulty in resolving such controversies in real time in a 
busy polling place on Election Day. At least with provisional ballots, the threat 
of actual disenfranchisement (literally preventing an eligible voter from voting) 
is greatly diminished, even if the likelihood of the vote being counted is less than 
one hundred percent. 36 However, the more ballots that are deferred for later 
decision, the more likely that provisional ballots could determine the outcome of 



28. See Stuart, supra note 25, at 464; U.S. Comm'n on Civil Rights, Voting 
Irregularities in Florida During the 2000 Presidential Election (2001), http://www. 
usccr.gov/pubs/vote2000/report/ch9.htm. 

29. Help America Vote Act (HAVA) of 2002, 42 U.S.C. §§ 15301-15545 (2006 & Supp. 
2008). 

30. Id. § 15483(a)(1)(A). 

31. See Cal. Inst, of Tech. & Mass. Inst, of Tech., Voting: What Is, What Could Be 
14-15 (July 2001), available at http://vote.caltech.edu/drupal/files/report/voting_what_is_what_ 
could_be.pdf. 

32. 42 U.S.C. § 15483(a)(1)(A) ("[E]ach State, acting through the chief State election 
official, shall implement, in a uniform and nondiscriminatory manner, a single, uniform, official, 
centralized, interactive computerized statewide voter registration list defined, maintained, and 
administered at the State level that contains the name and registration information of every legally 
registered voter in the State and assigns a unique identifier to each legally registered voter in the 
State "). 

33 . See Ctr. for Democracy & Election Mgmt., supra note 6, at 9. 

34. 42 U.S.C. § 1 5482; Daniel Tokaji, Provisional Voting: Federal Law and Ohio Practice, 
in The e-Book on Election Law § 5.4 (July 2, 2010), available at http://moritzlaw.osu.edu/ 
electionlaw/ebook/part5/procedures_rules0 1 .html. 

35. Wendy R. Weiser, Are HAVA's Provisional Ballots Working?, Brennan Ctr. FOR 
Justice 2-3 (Mar. 29, 2006), http://www.brennancenter.Org/page/-/d/download_file_39043.pdf. 

36. Id. at 2. 



2010] WHAT THE WORLD CAN LEARN 9 1 



a close election, and therefore, that litigation would result to contest the 
legitimacy of such ballots. Moreover, since 2000, states and localities have 
enforced inconsistent standards as to which provisional ballots will be counted. 37 
In subsequent elections, however, new problems with the voter registration 
system have emerged to become the chief challenges for election reformers in the 
United States. In particular, private organizations that have filled the void caused 
by the government's absence in registering voters have come under scrutiny for 
registering fictitious or duplicate persons. 38 At the same time, state parties have 
also developed strategies for challenging the status of voters — for example, by 
comparing the voter registration list to other lists such as driver's license, Social 
Security, change of address, or home foreclosure lists — to question the residency 
of voters. 39 If Congress revisits election reform during the Obama presidency, it 
will likely grapple with both the activities of outside groups that register voters 
and the permitted reasons for challenging voters. If the United States were to 
move toward the international consensus position on voter registration, which is 
to have greater government involvement in registering voters, many such 
problems would be solved. 40 However, the United States is unique among nations 
in that the government does not keep a list of citizens, nor does it provide all 
citizens with identification that demonstrates citizenship. That failure hampers 
the government's ability to develop lists of eligible citizens for other purposes, 
such as voting. 41 

B. Ballot Technology 

The 2000 election controversy is defined in the popular imagination by 
images of cross-eyed vote counters examining holes punched on paper cards. The 
recount brought into stark view the nineteenth century technology that was being 
used to run modern U.S. elections. Reforms in the wake of the 2000 election led 
to the elimination of punch-card ballots and significant federal subsidies for new 
technology, such as Direct Recording Electronic (DRE) voting machines. 42 Many 



37. See Pew Ctr. on the States, Solution or Problem? Provisional Ballots in 2004, 
at 7-8 (Apr. 2005 ), available at http ://www.pewcenteronthestates.org/uploadedFiles/ERIP 1 0Apr05 . 
pdf; Weiser, supra note 35, at 5. 

38. Mike Pesca, Politicizing the Process of Registering Voters, Nat'L Pub. Radio (Oct. 1 9, 
2004), http://www.npr.org/templates/story/story.php?storyId=4 1 1 6462&ps=rs; Steve Friess, Acorn 
Charged in Voter Registration Fraud Case in Nevada, N.Y. TIMES, May 5, 2009, at Al 8, available 
at http://www.nytimes.com/2009/05/05/us/05acorn.html. 

39. Christopher Cooper & Evan Perez, Voting-Rights Conflicts Intensify, WALL St. J., Sept. 
17, 2008, at A22, available at http://online.wsj.com/article/SB122161670293146325. 
html#articleTabs_interactive; Michael Moss, Big G.O.P. Bid to Challenge Voters at Polls in Key 
State, N.Y. Times, Oct. 23, 2004, available at http://www.nytimes.com/2004/10/23/politics/ 
campaign/23vote.html. 

40. See ROSENBERG & CHEN, supra note 19, at 26. 

4 1 . See Ctr. for Democracy & Election Mgmt., supra note 6, at 9- 1 1 . 

42. Ron Word, Florida Rids Itself of Punch-Card Ballots, A.P. ONLINE (Sept. 5, 2001), 



92 INDIANA LAW REVIEW [Vol. 44:85 



procurement decisions made in the wake of the 2000 controversy were later a 
source of regret as a lack of confidence in the security of electronic machines led 
many states to abandon them. 43 

Ballot technology and error rates constituted the most studied phenomena in 
the wake of the 2000 controversy. The Caltech/MIT Voting Technology Project 
("the Project") examined the error rates of different voting methods and 
concluded that punch-card ballots were far inferior to other technologies, such as 
optical scan ballots or electronic voting machines. 44 However, the Project also 
found that the quality of election administration was a more important factor in 
the number of lost votes (votes that end up not being counted) than the 
technology used by voters to cast their ballot. 45 In other words, from the 
standpoint of reliability in translating voter intentions to counted ballots, it was 
better to have better administration with inferior technology than superior 
technology with poor administration. Indeed, that lesson is one that reformers 
both within and beyond the United States should take to heart. 

With respect to ballot technology, however, many jurisdictions that switched 
quickly to electronic voting machines came to regret that decision. Concerns 
about security and reliability of certain machines led some to abandon them. 46 
Fear of hackers, as well as reports of breakdowns, led other jurisdictions to rely 
on technological advances that had paper backups in the event of a recount. 47 In 
particular, experience since 2000 has led many to conclude that one of the critical 
features of reliable balloting technology is guaranteeing a voter's ability to verify 
that the ballot accurately reflects his or her intentions. So-called precinct-based 



http://www.highbeam.eom/doc/l P 1 -46675 1 50.html; see Daniel Tokaji, Voting Technology, in The 
e-Book on Election Law § 4.1, available at http://mortizlaw.osu.edu/electionlawbook/part4/ 
equipment_machines06.html (last visited Nov. 18, 2010); Hasen, supra note 1, at 950-51. 

43. See Ctr. for Democracy & Election Mgmt., supra note 6, at 25-26; John Ingold, 
Colorado Set to Abandon Electronic Voting: How Will Colorado Vote?, Denv. Post (Jan. 16, 
2008, 8:44 AM MST), http://www.denverpost.com/breakingnews/ci_7981616; Pam Fessler, 
Several States Abandon Electronic Voting for Paper, Nat'L Pub. RADIO (Jan. 25, 2008), 
http://www.npr.org/templates/story/story.php?storyId=l 839943 1 . 

44. Henry E. Brady et al., Univ. of Cal., Berkeley, Counting All the Votes: The 
Performance of Voting Technology in the United States 32 (2001), http://www.sos. 
wa.gov/documentvault/UniversityofCaliforniaBerkeleyCountingAlltheVotesSeptember2001- 
1 020.pdf; R. Michael Alvarez et al., A Preliminary Assessment of the Reliability of Existing Voting 
Equipment 12-13 (Feb. 1, 2001) (unpublished manuscript), available at http://e-voto.di.fc.ul.pt/ 
docs/A%20Preliminary%20Assessment%20of%20the%20Reliability%20of.pdf. 

45. See Cal. Inst, of Tech. & Mass. Inst, of Tech., supra note 3 1 , at 8-9 (finding that of 
the four to six million votes lost in the 2000 election, 1 .5 to two million were lost because of faulty 
equipment and confusing ballots, while the rest were lost because of registration mix-ups, poorly 
conducted polling place operations, and absentee ballot problems). 

46. Fessler, supra note 43. 

47. Stephanie Desmon & Stephen Kiehl, Security of Ballot Not 1 00%: Critics Expect Flaws 
as Maryland Switches Systems, Balt. Sun (Jan. 19, 2008), http://articles.baltimoresun.com/2008- 
01-1 9/news/080 1 1 9022 1 _ 1 jpaper-ballots-voting-machines-optical-scan-machines. 



20 1 0] WHAT THE WORLD CAN LEARN 93 



optical scan technology allows a voter to place a paper optical scan ballot into a 
machine, which will reject it if the ballot is unreadable for some reason, such as 
an accidental vote for more than one candidate. 48 Electronic voting machines will 
prevent a voter from double voting in an election and will often require voters to 
verify that they intend to undervote if they intentionally leave one of the offices 
blank. 49 

In addition to highlighting problems with the technology itself, the 2000 
election brought to the fore the importance of ballot design in preventing voter 
error. Although many remember the 2000 election as turning on punch-card 
ballots, it was the defective Palm Beach butterfly ballot that received the most 
attention in the days following the election. 50 Because of the placement of names 
on that ballot, thousands of voters who believed they were voting for Al Gore 
ended up voting for Reform Party candidate Patrick Buchanan. 51 Also, as later 
analysis of the ballots revealed, another design error in Duval County led voters 
inadvertently both to vote for Al Gore and to write his name as a write-in 
candidate, subsequently leading to thousands of disqualified votes. 52 

No technology is exempt from potential errors in ballot design, although 
allowing voters to verify their vote will reduce the impact of such errors. We 
have learned in subsequent elections that even electronic voting machines can 
lead voters to miscast their votes based on misunderstandings concerning, for 
example, which candidates are running for which offices. 53 These design 



48. Tigran Antonyan et al., State- Wide Elections, Optical Scan Voting Systems, and the 
Pursuit of Integrity, 4 IEEE TRANSACTIONS ON INFO. FORENSICS & SEC. 597, 597 (2009). 

49. Id 

50. Staff of H. Comm. on the Judiciary, 107th Cong., How to Make Over One 
Million Votes Disappear: Electoral Sleight of Hand in the 2000 Presidential Election 
3 8 (Comm. Print 200 1 ); John-Thor Dahlburg, Designer of Florida 's Butterfly Ballot Loses Job; She 
Was Blamed for Confusion in 2000 Presidential Election, L.A. TIMES (Sept. 2, 2004, 4:00 PM 
PST), http://articles.sfgate.com/2004-09-02/news/17442939_l_butterfly-ballot-howard-dean- 
conservative-reform-party-candidate. 

5 1 . Jonathan N. Wand et al., The Butterfly Did It: The Aberrant Vote for Buchanan in Palm 
Beach County, Florida, 95 Am. Pol. Sci. REV. 793, 793 (2001) (finding that the butterfly ballot 
caused over 2000 Democratic voters to mistakenly vote for Buchanan instead of Gore); Newspaper: 
Butterfly Ballot Cost Gore White House, CNN (Mar. 1 1, 2001, 8:43 AM), http://edition.cnn.com/ 
200 1 /ALLPOLITICS/03/ 1 1 /palmbeach.recount/index.html?iref^storysearch. 

52. See Alan Agresti & Brett Presnell, Misvotes, Undervotes and Overvotes: The 2000 
Presidential Election in Florida, 1 7 STAT. Sci. 436, 438 (noting that "more than 20% of the ballots 
in predominantly African- American precincts in Duval County were tossed out"); see generally 
Kirk Wolter et al., Reliability of the Uncertified Ballots in the 2000 Presidential Election in 
Florida, 57 Am. Statistician 1 (2003), available at http://www.amstat.org/misc/ 
presidentialelectionballots.pdf (discussing a study that conducted a comprehensive review of all 
uncounted ballots in Florida and found that had the recount been limited to the counties Gore 
contested, Bush still would have won the election). 

53. Clive Thompson, Can You Count on Voting Machines?, N.Y. Times (Jan. 6, 2008), 
http://www.nytimes.com/2008/01/06/magazine/06Vote-t.html. 



94 INDIANA LAW REVIEW [Vol. 44:85 



problems, as well as the technology problems noted above, are more pronounced 
in the United States given the large number of offices and propositions appearing 
on ballots. 54 In many countries, voters vote for one or two offices in a given 
election, often on long ballots that simply list parties participating in that election. 
In the United States, it is not uncommon for voters to vote for three federal 
offices, five state offices, multiple local offices, judges, and referenda on the 
same ballot. 

C. Modes of Voting 

In addition to problems with the balloting on Election Day itself, the 2000 
election included controversies concerning the counting of absentee ballots, 
particularly ballots cast by soldiers overseas. 55 As each ballot was scrutinized in 
the litigation following the vote, the technical requirements for absentee ballots 
became a fertile source of disagreement as to which ballots were legally cast and 
as to how much help administrators should provide voters who made technical 
errors. 56 That lesser-known aspect of the controversy presaged the recent 
controversy in the U.S. Senate race in Minnesota in which as many as five 
percent of absentee ballots were rejected as invalid. 57 



54. See Lawrence Norden et al., Brennan Ctr. for Justice, Better Ballots 18-59 
(July 2008), available at http://brennan.3cdn.net/d6bd3c56be0d0cc861_hlm6i92vl.pdf 
(summarizing problems with ballot design in the United States). 

55. Kosuke Imai & Gary King, Did Illegal Overseas Absentee Ballots Decide the 2000 U.S. 
Presidential Election?, 2 Persp. ON Pol. 537, 537-49 (2004) (arguing that although Al Gore 
received more votes than George W. Bush in Florida, Bush won the election due to overseas 
absentee ballots that came in and were counted after election day); David Barstow & Don Van 
Natta Jr., How Bush Took Florida: Mining the Overseas Absentee Vote, N.Y. TIMES, July 1 5, 200 1 , 
available at http://www.nytimes.com/2001/07/15/national/15BALL.html. Barstow and Van Natta 
noted that 

[i]n an analysis of the [2490] ballots from Americans living abroad that were counted 
as legal votes after Election Day, The Times found 680 questionable votes. Although 
it is not known for whom the flawed ballots were cast, four out of five were accepted 
in countries carried by Mr. Bush, The Times found. Mr. Bush's final margin in the 
official total was 537 votes. 

56. See Gore on the Defensive, SALON (Nov. 19, 2000, 1:07 PM), http://www.salon.com/ 
news/politics/trail/2000/1 l/19/trail_mix/index.html (explaining how the GOP had alleged that the 
Democratic Party was engaged in a campaign to disqualify 1420 overseas ballots based on 
technicalities); Richard L. Berke, Examining the Vote; Lieberman Put Democrats in Retreat on 
Military Vote, N.Y. TIMES, (July 15, 2001), http://www.nytimes.com/2001/07/15/us/ examining- 
the-vote-lieberman-put-democrats-in-retreat-on-military-vote.html?sec ; =&spon=&pagewanted=all; 
Michael Moss, Absentee Votes Worry Officials as Nov. 2 Nears, N.Y. TIMES (Sept. 13, 2004), 
http://www.nytimes.eom/2004/09/l 3/politics/campaign/l 3vote.html. 

57. Courts May Decide Minn. Senate Seat, USA TODAY (Nov. 28, 2008, 4:04 AM), 
http://www.usatoday.com/news/politics/election2008/2008- 1 1 -28-minnesota-senate-race_N.htm 
("Secretary of State Mark Ritchie estimated that 12,000 absentee ballots were rejected for various 



20 1 0] WHAT THE WORLD CAN LEARN 95 



The rising trend in absentee and early voting threatens to revolutionize the 
way the United States manages its elections. 58 In some respects, these alternative 
modes of voting have brought the United States closer to the majority of nations 
that allow for voting on more than one day. Historically, most voters in the 
United States, unless they had a compelling reason for nonattendance at the polls, 
could only vote on the Tuesday (not a national holiday as in many other 
countries) when elections were conducted. 59 In the modern era, with the rise of 
absentee and early voting, elections in some states now begin several weeks 
before the official date. 60 Many states have moved toward these innovations in 
order to mitigate the frenzy and long lines that can accompany a single election 
day. 61 

Just as voters on Election Day cast ballots by many methods, so too do early 
voters. In the western states, early voters disproportionately vote by absentee 
ballot; they mail in their request for a ballot and then return the ballot by mail 
before Election Day. 62 Such is the case for overseas and military voters, as 
provided by federal law. 63 Some states will allow absentee ballots to be faxed or 
emailed as well. In other states, polls open days or weeks in advance so voters 
have an extended period by which to cast their ballot, or the state opens a limited 
number of vote centers in advance of Election Day. 64 Looming on the horizon, 
of course, is Internet voting. The United States recently has experimented with 
some overseas military voters voting on-line, but the limited success of that effort 
has yet to assuage those concerned about the method's security. 65 



reasons. That's between 4% and 5% of all the absentee ballots cast."). 

58. See John C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret Ballot: 
Challenges for Election Reform, 36 U. Mich. J.L. Reform 483, 512 (2003) ("The rise in absentee 
voting, the ease of obtaining absentee ballots, and the role of the parties in the process could easily 
lead to increased fraud and the loss of protections of the secret ballot."). 

59. David S. Broder, Why Vote on Tuesdays?, WASH. POST (Nov. 10, 2005), http://www. 
washingtonpost.com/wp-dyn/content/article/2005/1 1 /09/AR2005 1 1 090 1 650.html; Jesse McKinley, 
A Push to Supplement Tuesday Voting with Weekends, N.Y. TIMES, Mar. 10, 2010, at A 18, 
available at http://www.nytimes.com/2010/03/10/us/10vote.html. 

60. Mary Fitzgerald, Greater Convenience but Not Greater Turnout: The Impact of 
Alternative Voting Methods on Electoral Participation in the United States, 33 Am. Pol. Res. 842, 
846-48 (2005); see also Ctr. for Democracy & Election Mgmt., supra note 6, at 33 ("While 
only [eight] percent of ballots were cast before Election Day in 1994, by 2004 the percentage of 
ballots cast before Election Day had risen to [twenty-two] percent."). 

6 1 . See Fitzgerald, supra note 60, at 846-49. 

62. Paul Gronke et al., Early Voting and Turnout, 4 POL. Sci. & Pol. 639, 639-40 (2007); 
Scott Helman, Minds Made Up, Millions Voting Early, Bos. GLOBE (Sept. 30, 2008), 
http://www.boston.com/news/nation/articles/2008/09/30/rninds_made_up_millions_voting_early/ 
("Interest in early and absentee voting has grown since the 1970s, especially in Western states, 
which have been the pioneers, researchers say."). 

63. 42 U.S.C. § 1973ff-2 (2006). 

64. See Gronke et al., supra note 62, at 639-4 1 . 

65. R. Michael Alvarez & Thad E. Hall, Point, Click, & Vote: The Future of 



96 INDIANA LAW REVIEW [Vol. 44:85 



These alternative methods of voting have raised a new set of concerns that 
should caution other countries moving in a similar direction. Some worry that 
early voters do not have the benefit of basing their decisions on late-breaking 
developments in a campaign. 66 The more serious problem, as noted above, 
concerns the error rates on absentee ballots, which sometimes lead to a great 
number of uncounted votes. 67 This high rate of spoilage results from the failure 
of voters to comply with the technical requirements of requesting and submitting 
such ballots, as well as errors in actually casting their vote. 68 Without the aid and 
supervision of election officials, ballots cast in private (as absentee ballots are) 
are ripe for both fraud and error. 69 

In-person early voting poses a separate set of challenges, principally for the 
candidates and parties wishing to have observers in the polling place throughout 
the early voting period. When elections were held on a single day, staffing 
polling places with representatives from the campaigns was easy. Placing people 
there for two weeks when they are most needed for the final days of campaigning 
presents administrative challenges that political operatives have only just begun 
to confront. Nevertheless, given their popularity, these forms of "convenience" 
voting are here to stay and will only gain greater acceptance. 70 Whether the states 
begin to move toward the next stage (Internet voting) depends on whether both 
insiders and the public become convinced of its reliability and security. 

D. Counting and Recounting Votes 

In the end, the 2000 presidential election controversy was about the fairness 
of standards used to count ballots. The U.S. Supreme Court found that the 
recount process ordered by the state court in Florida treated similar ballots 
differently, such that voters in parts of the state with more permissive standards 
would be more likely to have their votes counted than those in other parts of the 
state. 71 The unbounded discretion left in the hands of those counting the votes 
could lead to impermissible discrimination based simply on the fortuity of which 



INTERNET VOTING 1 -8 (2004); Alan Boyle, Pentagon Launches Internet Voting Effort for Overseas 
Americans, MSNBC (June 3, 2003), http://www.msnbc.msn.com/id/307893 1/; Cal. Inst. ofTech. 
& MASS. Inst. OF TECH., supra note 31, at 14-15; John Dunbar, Internet Voting Project Cost 
Pentagon $73,809 Per Vote, THE Ctr. FOR PUBLIC INTEGRITY (Aug. 9, 2001), http://projects. 
publicintegrity.org/telecom/report.aspx?aid=297. 

66. John C. Fortier, Absentee and Early Voting: Trends, Promises, and Perils 61 
(2006); Steve Kornaki, The Big Problem with Early Voting, N.Y. OBSERVER (Feb. 12, 2008, 3:47 
PM), http://www.observer.com/2008/big-problem-early-voting. 

67. See Courts May Decide Minn. Senate Seat, supra note 57. 

68. See Cal. Inst, of Tech. & Mass. Inst, of Tech., supra note 3 1 , at 38. 

69. See Fortier & Ornstein, supra note 58, at 512-13. 

70. See Fitzgerald, supra note 60, at 847-48 (finding that fifteen states had implemented in- 
person early voting between 1970 and 2002); Gronke et al., supra note 62, at 640 ("Election 
officials are strong advocates of early voting reforms."). 

71. Bush v. Gore, 531 U.S. 98, 105-07 (2000). 



20 1 0] WHAT THE WORLD CAN LEARN 97 



vote counter may have counted which ballot. 72 

Although the Supreme Court's opinion spoke the language of discrimination 
and equal protection, underlying it was a concern about partisan administration 
and incomplete legal regimes. 73 Some number of similarly situated ballots will 
always be treated differently in any election where millions of votes must be 
tabulated. Random error, which is inevitable, would not raise constitutional 
concerns. 74 Bias, or the potential for bias, triggers more fundamental concerns 
(well known within and beyond the United States) about use of the power to 
count votes to determine election outcomes. 

The potential for political favoritism grows when the legal regime is not 
designed for the task of recounting ballots in a close election. Such was the case 
in Florida in 2000. Gaps in the statute needed to be filled either by state officials 
or the courts, with charges of bias being lodged depending on the suspected party 
affiliation of the decision maker. The U.S. Supreme Court was not immune to 
such charges either, but public opinion polling in the year after the Court's 
resolution of the controversy showed that it had not suffered any long-term 
damage to its credibility among the mass public. 75 

In these respects, the 2000 presidential election controversy looked like most 
election controversies in other parts of the world. Although ballot box stuffing 
and classic forms of fraud may be more pronounced elsewhere, these 
controversies ultimately follow a script of insiders using their power to tilt 
election outcomes in their favor. As in other countries, the actual and perceived 
independence of those overseeing the counting of votes is critical to accord 
legitimacy to the process. 76 As detailed in the introduction, the United States has 
proven uniquely incapable of developing nonpartisan institutions to oversee its 
democracy. 77 Not only the chief election officials of states, but even our judges 
are either elected or appointed by partisans. 78 In stark contrast, most countries 



72. Id. 

73. See id. at 128 (Stevens, J., dissenting) ("What must underlie petitioners' entire federal 
assault on the Florida election procedures is an unstated lack of confidence in the impartiality and 
capacity of the state judges who would make the critical decisions if the vote count were to 
proceed. Otherwise, their position is wholly without merit."); Pamela S. Karlan, The Newest Equal 
Protection: Regressive Doctrine on a Changeable Court, in THE VOTE: BUSH, GORE & THE 
Supreme Court 77, 91-92 (Cass R. Sunstein & Richard A. Epstein eds., 2001) (arguing that the 
Supreme Court's decision in Bush v. Gore was based on an underlying mistrust of all other actors 
in the political process). 

74. Karlan, supra note 73, at 91-92. 

75. Jeffrey L. Yates & Andrew B. Whitford, The Presidency and the Supreme Court After 
Bush v. Gore: Implications for Institutional Legitimacy and Effectiveness, 13 STAN. L. & Pol'y 
Rev. 101, 112(2002). 

76. See generally CTR. FOR DEMOCRACY & ELECTION MGMT., supra note 6, at 49. 

77. See supra notes 1-14 and accompanying text. 

78. Hasen, supra note 1, at 974 ("In thirty-three states, the secretary of state (or other 
statewide official charged with responsibilities as the Chief Elections Officer of the state (CELO)) 
is elected through a partisan election process. No state currently elects the CELO through a 



98 INDIANA LAW REVIEW [Vol. 44:85 



have found ways to insulate bureaucrats and election judges from the normal 
partisan pressures of the electoral environment. 79 To be sure, losers in any 
contested process often feel unfairly treated, no matter how cordoned-off the 
decisionmakers may be. 80 

II. Goals for an Election Reform Agenda 

The recent U.S. experience with crisis and reform teaches lessons that, to 
some extent, can be universalized for other countries. Of course, every electoral 
system is different, and the cultural, economic, and institutional context will 
greatly affect the goals and capabilities of reform. Nevertheless, each electoral 
system seeks to further common values, even if they necessarily must strike the 
balance in different ways. 

As a threshold matter, an electoral system must accurately capture the 
preferences of those who cast ballots. 81 Perfect accuracy can never be achieved, 
and resources spent to ensure an accurate result are often traded off against those 
necessary to further other values, such as participation, competition, and 
representation. Reformers must recognize that no perfect electoral system exists 
and that the best technology with the finest administrators operating under the 
best set of rules will not produce results that perfectly translate voter intentions 
into counted ballots. Although perfection may be illusory, minimizing errors to 
the extent possible given other pressing values remains the defining feature of a 
working election system. 

This concern with accuracy might also be seen as a value implicit to 
representativeness — that is, the election results must accurately represent the 
preferences of those who cast votes. This does not necessarily imply that all 
votes must be counted, but rather that any errors in vote tabulation should be 
random and not biased against identifiable subgroups of the population. Different 
electoral systems attempt to achieve representativeness in different ways — for 
example, by choosing between proportional and plurality-based systems. Indeed, 
in the United States, the Electoral College system has made it possible for a 
candidate to win the presidency, as George W. Bush did, 82 while receiving fewer 



nonpartisan election. The remaining states use an appointments process."); David G. Savage, 
Elected Judges Make a Case for 'Appearance of Bias ', CHI. Trib. (Feb. 22, 2009), http://articles. 
chicagotribune.com/2009-02-22/news/09022101 1 llrecusal-justices-judges ("In [thirty-eight] 
states, some judges are elected. Nineteen states besides West Virginia and Illinois elect the justices 
of their supreme court."). 

79. See Ctr. for Democracy & Election Mgmt., supra note 6, at 5. 

80. Id. at 49 ("The losing side, not surprisingly, is unhappy with the election result, but what 
is new and dangerous in the United States is that the supporters of the losing side are beginning to 
believe that the process is unfair."). 

81. See id. at 1. 

82. R. Michael Alvarez, Measuring Election Performance 1 (Caltech/MIT Voting Tech. 
Project, Working Paper No. 94, 2009), available at http://vote.caltech.edu/drupal/files/working_ 
paper/wp_94_pdf_4b67603 3ef.pdf (noting that although Gore received approximately 550,000 



2010] WHAT THE WORLD CAN LEARN 99 



votes than his opponent. 83 At a minimum, though, when it comes to electoral 
administration, representativeness requires that decisions made by administrators 
should not skew outcomes and that avoidance of bias in the inevitable 
inaccuracies exist as a paramount goal. 

Beyond counting votes accurately and fairly, a well-functioning electoral 
system must allow for widespread participation. Gone are the days when limiting 
the vote to white, male property owners, for example, could qualify a country as 
a robust democracy. Even among those that putatively accord universal suffrage, 
countries continue to disenfranchise whole groups of adult citizens based on their 
status (such as prisoners, 84 ex-prisoners, the mentally incompetent, 85 or recent 
residents 86 ), and most limit the vote to adult resident citizens. Contemporary 
debates focus more on the barriers to participation through identification, 
registration, and other requirements. 

Especially in the United States, the value of participation appears in tension 
with values of electoral integrity and accuracy. In particular, many argue that 
lowering the barriers to participation represents an invitation for voter fraud. 87 
Such is the criticism made by those favoring a move (quite common throughout 



more votes than Bush, Bush won the 2000 presidential election). 

83. See generally John F. Banzhaf III, One Man, 3.312 Votes: A Mathematical Analysis of 
the Electoral College, 13 VlLL. L. REV. 304 (1968) (critiquing the inequality in voting power 
inherent in the Electoral College system). But see Nat'l Comm'n on Fed. Election Reform, To 
Assure Pride and Confidence in the Electoral Process 23 (2001), available at http:// 
election2000.stanford.edu/rull.report8. 2001.pdf (acknowledging the traditional critiques of the 
electoral college but reminding citizens that the electoral college "was a delicate compromise that 
solved one of the most difficult problems of the Constitutional Convention"). 

84. See generally Mandeep K. Dhami, Prisoner Disenfranchisement Policy: A Threat to 
Democracy?, 5 Analyses OF Soc. Issues & PUB. Pol'y 235 (2005). For an overview of 
international prisoner disenfranchisment laws, see generally CRIMINAL Disenfranchisement in 
an International Perspective (Alec C. Ewald & Brandon Rottinghaus eds., 2009). 

85 . Forty-four American states disenfranchise some individuals with cognitive and emotional 
impairments. Kay Schriner & Lisa A. Ochs, Making Exceptions to Universal Suffrage: Disability 
and the Right to Vote, in Encyclopedia of Criminology and Deviant Behavior 179, 179 
(Charles E. Faupel & Paul M. Roman eds., 2000). 

86. See Rosenberg & Chen, supra note 1 9, at 1 6 n.62 (noting that while a number of other 
countries have used data-sharing arrangements among government agencies to ensure that eligible 
voters can vote even if their personal information has changed, the United States has used such 
techniques to identify citizens who may be ineligible to vote locally). 

87. Crawford v. Marion Cnty. Election Bd., 533 U.S. 181, 191-93 (2008) (supporting the 
legitimacy of the state interest in preventing in-person voter fraud, despite the lack of evidence 
suggesting it is an issue); Purcell v. Gonzales, 549 U.S. 1, 4 (2006) ("Voter fraud drives honest 
citizens out of the democratic process and breeds distrust of our government."); Stephen 
Ansolabehere & Nathaniel Persily, Vote Fraud in the Eye of the Beholder: The Role of Public 
Opinion in the Challenge to Voter Identification Requirements, 121 HARV. L. Rev. 1737, 1738 
(2008) (concluding that "perceptions of fraud have no relationship to an individual's likelihood of 
turning out to vote"). 



100 INDIANA LAW REVIEW [Vol. 44:85 



the world where governments provide their citizenry with identification or 
citizenship papers) to require photo identification in order to vote. 88 A similar 
criticism is often raised against different forms of convenience voting, such as 
absentee ballots, 89 which have been the most amenable to manipulation and fraud 
by political entrepreneurs. 90 On the one hand, the opportunity to vote at home, 
in private, at a convenient time ensures that some voters will end up voting who 
otherwise would not (although the empirical evidence suggests that such 
measures do not appreciably increase turnout). 91 On the other hand, removing 
such hurdles presents enforcement challenges to ensure that these votes are cast 
by the voters themselves and are not cast under duress or for reward. 92 

Of course, participation as a value extends beyond voters to candidates and 
parties, and it is thereby often reinterpreted as "competitiveness." 93 Like 
representativeness, competitiveness is a value open to radically different 
interpretations. It could imply mere contestation, as reflected in the sheer number 
of candidates or parties that appear on the ballot. 94 It could also entail genuine 
rivalry, as in the number of candidates or parties with a realistic chance of 
winning control. 95 Alternatively, it could be assessed according to the results of 
elections, such as the margins of victory. 96 Competition, however we define it, 



88. Ctr. for Democracy & Election Mgmt., supra note 6, at 1 8 ("There is no evidence 
of extensive fraud in U.S. elections or of multiple voting, but both occur, and it could affect the 
outcome of a close election. The electoral system cannot inspire public confidence if no safeguards 
exist to deter or detect fraud or to confirm the identity of voters. Photo IDs currently are needed 
to board a plane, enter federal buildings, and cash a check. Voting is equally important." (footnote 
omitted)). 

89. For a discussion on the impact of the vote-by-mail system implemented in Oregon, see 
generally Priscilla L. Southwell & Justin Burchett, Vote-by-Mail in the State of Oregon, 34 
Willamette L. Rev. 345 (1998). 

90. See Fortier & Ornstein, supra note 58, at 5 12-13 (detailing the theoretical problems with 
absentee ballots and noting actual instances of absentee ballot fraud). 

9 1 . Fitzgerald, supra note 60, at 856 (noting that a study spanning thirty years, all fifty states, 
and presidential and congressional elections found that early voting procedures, such as unrestricted 
absentee ballots, do not increase voter turnout.); see also Gronke et al., supra note 62, at 644 
("There may be good reasons to adopt early voting — more accurate ballot counting, reduced 
administrative costs and headaches, and increased voter satisfaction — but boosting turnout is not 
one of them."). 

92. Fortier & Ornstein, supra note 58, at 512-13. 

93. See generally The Marketplace of Democracy: Electoral Competition and 
American Politics (Michael P. McDonald & John Samples eds., 2006) (examining why electoral 
competition in the United States is in decline and hypothesizing about what might be done to 
increase competition). 

94. Nathaniel Persily, The Place of Competition in American Election Law, in THE 
Marketplace of Democracy: Electoral Competition and American Politics 171, 172 
(Michael P. McDonald & John Samples eds., 2006). 

95. Mat 173. 

96. Id. 



20 1 0] WHAT THE WORLD CAN LEARN 1 1 



maybe an indispensable element of democracy, even though close elections place 
great stress on almost any electoral system. The 2000 presidential election 
controversy in the United States, like the one in Mexico six years later, 97 must be 
a relatively rare event if the system is to withstand the inevitable allegations of 
malfeasance that accompany any razor-thin victory. 98 

This discussion leads to the final value reform should further: preserving 
public confidence in the electoral system. Public confidence and trust in the 
system, while foundational to accord legitimacy to the government, turns out to 
be very difficult to achieve in some deliberate way. 99 Of course, at the margins, 
a system that is completely non-transparent and seems to produce repeated results 
that fly in the face of what majority preferences would seem to predict will be 
crippled by a lack of confidence. Beyond the obvious cases of faux democracies, 
however, few agreed-upon strategies exist to maintain public confidence when 
the system is under stress. This is not to say that all countries have populations 
with equal degrees of skepticism of their political system. Rather, the predictors 
of the levels of mistrust vary greatly based on cultural 100 and institutional 
contexts 101 and the nature of political cleavages in the democracy. Confidence in 
the electoral system will often vary with confidence in government and public 
structures more generally, 102 and election administration and law can only do so 
much to address those larger concerns. 

Losers in close elections will often challenge the validity of the process that 



97. Manuel Roig-Franzia, Contender Alleges Mexico Vote Was Rigged, WASH. POST, July 
9,2006, at Al. 

98. Nat'l Comm'n on Fed. Election Reform, supra note 83, at 17 (noting that in 1996, 
three-quarters of the population felt that the electoral process was fair, which then dropped to one- 
half after the 2000 election). 

99. See Pew Research Ctr. for the People & the Press, How Americans View 
Government: Deconstructing Distrust (Mar. 10, 1998), available at http ^/people- 
press. org/report/95/ (noting that Americans' distrust of government tends to remain relatively 
constant throughout the decades, with slight vacillations due to political scandals and economic 
downturns); see generally Why People Don't Trust Government (Joseph S. Nye et al. eds, 
1997) (analyzing likely causes of declining public confidence). In fact, public trust in government 
and political institutions has declined in all industrialized democracies since the 1990s, although 
in varied patterns and levels. See Peri K. Blind, Building Trust in Government in the 
Twenty-First Century: Review of Literature and Emerging Issues 8 (Nov. 2006), available 
at http://unpanl.un.org/intradoc/groups/public/documents/un/unpan025062.pdf. 

100. Blind, supra note 99, at 8 (finding that the decrease in public trust in government was 
blamed on a variety of reasons, such as continuing tensions on nationalism and separatism in 
Canada and the strains of unification in Germany). 

101. Id. 2X1 (rinding that, for example, civic engagement and political trust are positively 
correlated in the industrialized world, but in developing countries like the Dominican Republic and 
Morocco, civic engagement actually decreases trust, as it exposes citizens to the corrupt and 
illegitimate daily practices of government). 

102. Id. at 1 1-12, 20 (concluding that economic challenges and political scandal appear to be 
two major contributors to the declining trust in government). 



102 INDIANA LAW REVIEW [Vol. 44:85 



determined the victor. Whether valid or not, supporters of the loser will express 
a lack of confidence in the process. 103 The critical question is whether those 
feelings of mistrust subside over time or produce widespread apathy or organized 
violence. 104 This will depend in part on whether the institutions overseeing 
elections have built up a repository of goodwill that allows them to survive the 
stress of close elections. 105 To be sure, a record of nonpartisanship and 
institutional buffers against political pressures may help, just as would inclusion 
of all potentially critical parties in decision making processes and institutional 
design in the pre-election period. Even the most cautionary, well-meaning 
designers of institutions, however, should not overestimate their ability to prevent 
the inevitable loss of confidence among sore losers in a close election. 106 Rather 
than worry about perceptions of fairness and accuracy, reformers would do well 
to focus on actually making the process fair and accurate with the hope that the 
public will recognize it as such. 

III. Metrics for Success 

Listing the values that an election administration system ought to achieve, 
even while recognizing that they are in tension, is easier than providing agreed- 
upon metrics to evaluate the fulfillment of such goals. What follow in this 
subsection are potential metrics that different democracies have employed to 
measure fulfillment of those goals. As with the values themselves, it may be 
impossible to maximize along all metrics simultaneously, and basic features of 
the political or electoral system may make achievement more difficult in some 
contexts. That said, these metrics can often be adjusted to accommodate local 
institutional capabilities and political realities. 



1 03. After the 2000 presidential election, three-quarters of Democrats doubted the fairness of 
the process. Nat'l Comm'n on Fed. Election Reform, supra note 83, at 17. 

104. See, e.g., Allan J. Cigler & Russell Getter, Conflict Reduction in the Post-Election 
Period: A Test of the Depolarization Thesis, 30 W. POL. Q. 363, 363-64 (1977) (finding that with 
one exception, polarization in the United States has not led to violent resistence to a regime); Steve 
Inskeep & Gwen Thompkins, Kenya 's Post-Election Violence Kills Hundreds, Nat'l Pub. Radio 
(Jan. 2, 2008), http://\wvw.npr.org/templates/story/story.php?storyId=l 7774507 (reporting on the 
violence that surrounded the 2008 presidential election in Kenya). 

105. Cigler & Getter, supra note 104, at 363 ("Continued citizen support in the post-election 
period depends on the widespread belief that the electoral contest has been resolved legitimately 
and that the mantle of authority has been conferred upon the regime in a manner deserving of 
respect and support for the collective decision."). 

106. One author notes that the cognitive dissonance resulting from the preferred candidate's 
loss (i.e., "my candidate is the best candidate" versus "my candidate lost") may be psychologically 
dealt with by denying that the preferred candidate actually lost at all, thus resulting in greater 
polarization of political sentiments after the election (e.g., "the other candidate only won because 
of voter fraud"). Id. at 366-67. 



20 1 0] WHAT THE WORLD CAN LEARN 1 03 



A. Lost Votes 

In the wake of the 2000 U.S. presidential election controversy, the 
Caltech/MIT Voting Technology Project ("the Project") developed a measure of 
lost votes to calculate the total number of voters whose votes were not counted 
or were otherwise prevented from voting. 107 The measure identifies the number 
of ballots cast that were not counted plus the number of voters who were 
prevented from voting due to problems with their registration. 108 The Project 
estimated that according to this measure, four to six million votes were lost in the 
2000 presidential election. 109 

Calculating the number of lost votes requires good data on the number of 
voters who attempt to vote, the number of ballots that are cast, and the number 
that are counted. These constitute basic pieces of information that any election 
system ought to maintain, but they require some kind of uniform, centralized 
clearinghouse for the information. 110 Moreover, to record voter intentions and the 
reasons for failing to vote may require comprehensive surveys in the wake of an 
election. 111 Official totals can only calculate the pieces of paper — whether actual 
votes or names on a turnout tally — that were in fact delivered. For those who 
failed to participate in the system, surveys may be the only way to assess their 
number and reasons for nonparticipation. 

For the most part, the number or share of votes that are lost provides a gauge 
for assessing the failure of the electoral regime to translate voter intentions into 
actual votes. The measure does not distinguish intentional fraud from 
unintentional malfunction. Votes could go uncounted either because the 
machines do not register a vote 112 or because vote counters do not count them. 113 



1 07. Cal. Inst, of Tech. & Mass. Inst, of Tech., supra note 3 1 , at 8. 

108. Id. (finding that 7.4% of the forty million registered voters who did not vote listed 
registration problems as the cause). 

109. Id. 

110. The Voting Technology Project recommends that the federal government fund an 
independent agency for election administration that "would perform the sort of information 
clearinghouse function that it would see as necessary in order to establish best practices and to 
improve the information that counties have when they purchase equipment." Id. at 54. 

111. For many years, the only data source for studies on voter registration problems was the 
U.S. Census Bureau's Current Population Survey Voting Supplement, which asked eligible citizens 
if they voted, and if they did not vote, if they were registered. Alvarez, supra note 82, at 4. If a 
voter was registered but did not vote, he was then given the opportunity to choose one reason from 
a list of reasons for not voting. Id. Recently, however, a Voting Technology Project research team 
developed the first major survey-based research effort to study voter experience and election 
performance. Id. at 5-6. According to the researchers, this survey allows for a much more nuanced 
examination of voter problems, including the types of problems faced as well as where those 
problems are occurring and the magnitude of the problems. Id. at 4-7. 

1 12. For example, in the 2000 election, 678 votes were not counted in New Mexico's Rio 
Arribe County, and the state had the narrowest winning margin of only 366 votes. Despite the fact 
that voters utilized state-of-the-art push-button electronic voting machines, it appears that a 



104 INDIANA LAW REVIEW [Vol. 44:85 



Similarly, problems with the registration system could reflect either negligence 
or intentional efforts to register some voters and not others. The potential 
recommended policy changes will depend on the cause of the lost votes. 114 They 
could range from a change in balloting or registration technology to better 
training of election workers. 115 If intentional malfeasance is the suspected cause 
of lost votes, then it may be appropriate to recommend measures to increase 
transparency and bring multiple stakeholders into the process of administration 
and vote counting. 116 

B. Turnout 

Voter turnout may be the election phenomenon political scientists have 
studied most intensely, and it may be the metric most easily measured to gauge 
a democracy's health. Although many questions still remain (such as why voter 
turnout seems to have declined across the world over the last generation 117 ), many 
of the causes and correlates for high voter turnout are well-known. At the same 
time, methodological controversies often exist in how to measure voter turnout. 
The number of voters is often well-known from official statistics, but assessing 
the appropriate denominator to measure turnout often proves more difficult than 
one might think at first blush. 

Although many denominators could be contrived, the most popular employed 
are the voting age population, the citizen voting age population, and the eligible 
voting population. The choice among denominators — that is, turnout of which 
population — will affect one's inferences as to potential causes for lower turnout. 
For example, people have speculated for years as to why voter turnout has 
decreased in the United States over the past four decades. 118 Upon closer 



programming error resulted in the permanent loss of these votes. Dan Keating, Lost Votes in N.M. 
a Cautionary Tale: As Election Day Nears, a Look at Problems in 2000 Shows Fallibility of 
Machines, WASH. POST, Aug. 22, 2004, at A5. 

113. For a discussion of ways to improve the training and recruitment of poll workers, see 
Ctr. for Democracy & Election Mgmt., supra note 6, at 54-55. 

114. Cal. Inst, of Tech. & Mass. Inst, of Tech., supra note 31, at 10 (distinguishing 
between the "social problem" of fraud and the "engineering problem" of error). 

115. See Nat'l Comm'n on Fed. Election Reform, supra note 83, at 6-14 (setting forth 
fourteen policy recommendations, including the implementation of statewide voter registration lists 
and provisional voting, the creation of a national holiday for presidential and congressional 
elections, and the drafting of federal standards for voting equipment). 

1 1 6. Cal. Inst, of Tech. & Mass. Inst, of Tech., supra note 3 1 , at 1 (suggesting penalties 
for electoral fraud and improved detection methods to deter fraudulent voting practices). 

117. Michael McDonald, Voter Turnout, United States Elections Project, 
http://elections.gmu.edu/voter_turnout.htm (last visited July 17, 2010). 

1 1 8. See generally WARREN E. MILLER & J. MERRILL SHANKS, The NEW AMERICAN VOTER 
(1996) (a comprehensive attempt to explain electoral behavior in presidential elections); Ruy A. 
Teixeira, The Disappearing American Voter (1992) (empirically analyzing why voter turnout 
rates have declined and examining potential ways to increase turnout); Paul R. Abramson & John 



20 1 0] WHAT THE WORLD CAN LEARN 1 05 



analysis, it appears that a statistical quirk has been responsible for much of the 
alleged recent decrease. 1 19 The share of the voting-age population that has turned 
out in each election does appear to have declined, but the share of the eligible 
population turning out has remained relatively constant. The perceived decrease 
has resulted from an increase in the share of non-citizens and prisoners in the 
voting age population due to high levels of immigration and incarceration. 120 
Neither group can vote; therefore, increases in the ineligible share of the voting 
age population make it appear that a lower share of the population is actually 
turning out. 

Correlates and causes of low voter turnout can be divided into institutional 
and individual characteristics. The institutional characteristics can be further 
divided according to electoral system features and election law regimes. The 
features of the electoral system concern the way votes are translated into seats or 
offices, whereas election law regimes tend to vary according to the ease with 
which eligible voters can vote. 

Cross-national studies have identified a range of features of electoral systems 
that affect levels of voter turnout. 121 The clearest demarcation is between 
proportional representation systems and single-member district (SMD) plurality- 
based systems. Proportional systems, in which votes are directly translated into 
seat shares in the legislature, tend to produce higher levels of turnout than SMD 
systems, in which votes for losing candidates are effectively "wasted." 122 
Similarly, the number of viable political parties in a system seems to affect the 
turnout rate up to a point. 123 Increasing the number of parties past five or so 



H. Aldrich, The Decline of Electoral Participation in America, 76 Am. POL. SCI. REV. 502, 502 
(1982) (suggesting that declining voter turnout is substantially the result of "weakening of party 
identification and declining beliefs about government responsiveness"). 

1 19. The denominator for the voter turnout rate typically relies on the U.S. Census Bureau, 
which measures voting-age population (VAP), including people ineligible to vote, such as non- 
citizens, felons, and the mentally incompetent. Michael P. McDonald & Samuel L. Popkin, The 
Myth of the Vanishing Voter, 95 Am. Pol. SCI. REV. 963, 964 (2001). 

120. See id. at 963. 

121. See generally Andre Blais, What Affects Voter Turnout?, 9 ANN. REV. OF POL. SCI. 1 1 1 
(2006) (reviewing the Powell and Jackman articles, as well as more recent research on voter 
turnout); Robert W. Jackman, Political Institutions and Voter Turnout in the Industrial 
Democracies, 81 Am. Pol. Sci. Rev. 405, 407-09 (1987) (discussing five major factors that 
influence voter turnout: nationally competitive districts, electoral disproportionality, multipartyism, 
unicameralism, and compulsory voting); G. Bingham Powell, Jr., American Voter Turnout in 
Comparative Perspective, 80 Am. Pol. SCI. REV. 17, 18 (1986) (arguing that the American 
institutional setting, particularly its party system and registration laws, severely inhibits voter 
turnout). 

122. Powell, supra note 121, at 21 ("With proportional representation from the nation as a 
whole or from large districts, parties have an incentive to mobilize everywhere. With single- 
member districts, some areas may be written off as hopeless."). 

123. See Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus 
Government in Twenty-One Countries 1 06- 14 ( 1 984) (describing benefits and critiques of the 



106 INDIANA LAW REVIEW [Vol. 44:85 



appears to have a dampening effect on turnout. 124 This curvilinear relationship 
might be explained by the effect of the party system on attitudes toward political 
efficacy. Voters may prefer three or four parties to two, given that they may find 
in that range at least one party that effectively represents them. 125 As the number 
of parties grows beyond that, the translation of voter preferences gets blurred by 
deals made to secure a governing coalition, such that voters may sense that their 
individual vote is far removed from the actual choice of who will govern the 
country. 126 Fragile governing coalitions lead to greater uncertainly in how an 
individual's vote will translate to a shift in government policy. 

As electoral systems may vary in the way they translate votes into seats, 
election law regimes vary in how easy they make voting. Of course, countries 
that explicitly disenfranchise groups of voters, such as prisoners, new residents, 
or mentally incompetent people 127 (let alone women or racial minorities), may 
have marginally lower turnout due to such measures. The same could be said for 
countries where voters are intimidated from voting. But as discussed above, the 
main source of variation concerns the voting obstacles that different democracies 
impose. The frequent requirement of compulsory voting found in Latin America 
and elsewhere — such as Australia and Belgium — has an obvious effect on raising 
voter turnout, even when the penalties for not voting are quite low or the law goes 
unenforced. 128 Conversely, burdensome voter registration laws and a lack of 
government effort to register voters will suppress turnout. Beyond that, measures 
that make voting convenient represent a somewhat mixed bag. In the United 
States, it appears that same-day registration — that is, allowing new voters to 
register on the same day that they vote — somewhat heightens. 129 Early and 
absentee voting innovations, however, do not seem to have affected turnout 
much; 130 it appears that voters who choose those methods of voting would 
probably have voted anyway without those innovations. 131 

Although laws and electoral systems affect turnout levels, we know that 
demographic characteristics strongly predict whether an individual will vote. 



two-party system versus the multiparty system). 

124. Id. at 120-23 (using the Laakso-Taagepera index to find that across twenty-two 
democracies, the effective number of parties ranged from two to five). 

125. Mat 113-14. 

1 26. See id. at 1 1 0. But see generally AlNA GALLEGO ET AL., NUMBER OF PARTIES AND VOTER 
Turnout: Evidence from Spain (2009), available at http://polnet.wikispaces.com/file/ 
view/Numberof j3arties_and_voter_Uirnout.pdf (finding that the number of political parties has 
a positive effect on voter turnout, as those less in politics are more likely to vote when they have 
more choices). 

127. See supra notes 84-86. 

1 28. See Jackman, supra note 1 2 1 , at 409 (noting that mandatory voting laws will, even if not 
enforced, lead to higher, but not perfect, voter turnout). 

1 29. See Brians & Grofman, supra note 1 9, at 1 70 (finding that election day registration results 
in an increase in voter turnout of approximately seven percentage points in the average state). 

1 30. See Fitzgerald, supra note 60, at 854-56. 

131. See Gronke et al., supra note 62, at 642-43. 



20 1 0] WHAT THE WORLD CAN LEARN 1 07 



Education 132 and age tend to be the strongest predictors of turnout, with more 
educated and older voters being more likely to vote. 133 Unsurprisingly, those with 
a heightened sense of civic responsibility, 134 political efficacy, 135 and social 
connectivity 136 are more likely to turn out to vote. Those who have frequent 
contact with the government, either because they work closely with 
government 137 or in economic sectors highly dependent on government 
benefits, 138 are more likely to vote. The same is true for those with close 
connections to political parties or for members of groups who are closely aligned 
with political parties. 139 Of course, in countries where groups boycott elections 
or widespread fraud makes voting appear inconsequential, turnout will suffer. 

C. Incidences of Fraud 

Fraud is the most difficult, and perhaps most important, electoral 
phenomenon to measure. Scholars have tried their best to do so with limited 
success. When successful, fraud by its nature will go undetected. Thus, 
capturing the amount of fraud in an electoral system requires fine-tuned 
assessments of what a fraud-free election would produce so that irregularities can 
be eradicated. 

One must define fraud to measure it, and many definitions abound. 140 Fraud 
refers to more than election irregularities or the failure to count every vote; 
otherwise, a whole host of dysfunctions would be considered fraudulent. 
Moreover, officially sponsored disenfranchisement could be seen as fraud, but for 
the most part, fraud refers to efforts in secret or when those committing the fraud 
do not acknowledge the fraud. It generally refers to intentional, illegal action to 
alter vote totals so as to change the outcome of an election. 141 This could be done 



1 32. Similarly, education is positively correlated with citizen trust. R. Michael Alvarez et al., 
Are Americans Confident Their Ballots Are Counted?, 70 J. POL. 754, 763 (2008). 

133. Carol A. Cassel & David B. Hill, Explanations of Turnout Decline: A Multivariate Test, 
9 Am. Pol. Q. 181, 186-87 (1981). 

134. Id. at 182. 

135. Id. 

136. Marvin E. Olsen, Social Participation and Voting Turnout: A Multivariate Analysis, 37 
Am. Soc. Rev. 317,317(1972). 

1 37. M. Margaret Conway, Political Participation in the United States 3 1 (3d ed. 
2000). 

138. Id. at 30. 

139. Cassel & Hill, supra note 133, at 182. 

1 40. Justin Levitt, Brennan Ctr. for Justice, The Truth About Voter Fraud 4 (Nov. 
9, 2007), available at http://brennan.3cdn.net/e20e42 10db075b482b_wcm6ib0hl.pdf; Lorraine 
C. Minnite, Project VOTE, The Politics of Voter Fraud 6, available at http://www.bradblog. 
com/Docs/PoliticsofVoterFraudFinal.pdf (last visited Sept. 3, 2010) (noting that there is no single 
accepted definition of voter fraud). 

141. See Minnite, supra note 1 40, at 6. 



1 08 INDIANA LAW REVIEW [Vol. 44:85 



by traditional ballot box stuffing, 142 changing vote tallies, destroying votes, or 
obstructing voters who support particular candidates or parties. 143 

One way to "measure" fraud is to rely on official reports. One can look at the 
number of fraud prosecutions or incident reports at polling places. 144 One can 
also perform surveys of voters and election administrators to gather their 
assessments as to the extent of fraudulent action in a given election. Finally, 
post-election audits of ballots may shed light on irregularities occurring in certain 
areas. 

The data and measurement challenge becomes how to identify patterns for 
which no reasonable alternative other than fraudulent behavior explains 
irregularities in the data. If an "unnatural" or aberrant number of votes appears 
to have been cast for a particular party in an area where the party should not have 
so performed, an inference of irregularity might be supportable. Moreover, if a 
pattern emerges — for example, when one party is in charge of the vote counting 
and a surprising number of votes appears to have been cast for its 
candidates — then similar inferences might be appropriate. In other words, the 
burden of proof might shift to those who would explain the irregularity as 
produced by something other than fraud. 145 

The more incompetent the fraud, the easier it is to detect. In some countries, 
it will be easy to point out that many more or many fewer ballots were counted 
in an election as compared to the number of voters who appeared at the polls or 
even the number of voters in a jurisdiction. When fraudsters are more 
sophisticated, statistical models can provide the necessary tools to unearth 
systematic irregularities. Such has been the case in recent elections in Russia, 146 
Iran, 147 and Afghanistan, 148 for example. By comparing reported vote totals to 
what a statistical model would predict based on past behavior, turnout in the 
election, exit polls, and comparable statistics from around the country, one can 



142. For an example of absentee ballot box stuffing, see United States v. Boards, 1 F.3d 587 
(8th Cir. 1993). 

143. For a discussion of the different categories of voter fraud, see Levitt, supra note 140, at 
12-22. 

144. See, e.g., Att'y Gen., U.S. Dep't of Justice Pub. Integrity Section, Report to 
Congress on the Activities and Operations of the Public Integrity Section for 2006, at 
40-42 (2006), available at http://www.justice.gov/criminal/pin/docs/arpt-2006.pdf (describing a 
number of prosecutions for voter fraud cases). 

145. See, e.g. , Levitt, supra note 1 40, at 7- 1 1 (compiling a list of the methodological flaws that 
result in allegations of voter fraud when in fact no such fraud exists). 

146. Luke Harding & Tom Parfitt, Fraud, Intimidation and Bribery as Putin Prepares for 
Victory, GUARDIAN, Nov. 30, 1997, at 24, available at http://www.guardian.co.uk/world/2007/nov/ 
30/russia.politics. 

1 47. Farnaz Fassihi, Iran Council to Investigate Election-Fraud Claim, WALL St. J. (June 1 6, 
2009), http://online.wsj .com/article/SB 1 24505670 1 982 1 4769.html. 

1 48 . Joshua Partlow & Pamela Constable, Accusations of Vote Fraud Multiply in Afghanistan, 
Wash. Post (Aug. 28, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/08/27/ 
AR2009082704199.html. 



2010] WHAT THE WORLD CAN LEARN 109 



raise serious questions as to the legitimacy of reported results. 

D. Popular Trust and Confidence in the System 

Because fraud is difficult to prove with the specificity required by official 
observers, it is popular for critics to rely on perceptions of fraud. More generally, 
those seeking to combat fraud rely on popular confidence as the measure of a 
functioning electoral system. An electoral system cannot produce legitimate 
outcomes if the people do not trust the reported results. However, because a lack 
of confidence in the system can be the result of factors unrelated to actual 
administrative failures or intentional wrongdoing, 149 officials may find that 
popular confidence is a tricky value to satisfy. 

One can measure such confidence at the level of elites or the mass public. In 
some democracies, elite boycotts of elections or mass protests could signal a lack 
of confidence. The propensity for litigation or criticism from the media or non- 
governmental organizations might also signal a lack of confidence. We can 
measure popular confidence by asking a representative sample of the population 
a series of survey questions directed at measuring their attitudes toward the 
electoral system. Questions such as "How much confidence do you have that 
your vote will be counted?" or "How confident are you that the declared winner 
in this election received the most votes?" can be complemented by more specific 
queries as to attitudes about polling place practices and election administration. 150 

To reiterate, attitudes toward the "system" often reflect respondents' 
predispositions as to who they believe should have won the election. "Sour 
grapes" over legitimate election results are often expressed as a lack of 
confidence in the system. Isolating legitimate grievances against the election 
administration regime from mere complaints that the less preferable candidate 
won proves to be quite challenging. 151 Moreover, such feelings of confidence in 
the system are often reflective of attitudes toward government and the economy. 
The happier one is with government, the more likely one is to trust its election 
results. Those feelings toward government and social institutions will be affected 
by much more than behavior during elections. Tweaking the election 
administration regime can do little to assuage the concerns of people as to their 
position in life or the government's responsibility for it. 



1 49. See supra notes 99- 1 06 and accompanying text. 

150. For example, one study designed to determine voters' confidence in their vote being 
recorded correctly asked, "How confident are you that your ballot for president in the 2004 [, 2000 
where applicable,] election was counted as you intended?" Respondents could choose from the 
following options: very confident, somewhat confident, not too confident, or not at all confident. 
These responses were then categorized into two groups: confident and not confident. After the 
2000 election, 90.9% were confident their votes were counted, and after the 2004 election, 88.2% 
were confident that their votes were counted. See Alvarez, supra note 132, at 758. 

151. See supra notes 99- 1 06 and accompanying text. 



1 10 INDIANA LAW REVIEW [Vol. 44:85 



Conclusion 

Generalizing international lessons from one country's experience is always 
a tricky business. Because of the panoply of problems it revealed in the electoral 
system of a leading democracy, the 2000 U.S. presidential election provides a 
useful template for categorizing the challenges each democracy faces in running 
elections. When elections are decided by a small number of votes, we feel the 
need to examine many features of the system that could have altered the outcome. 
Such inquiries can improve the functioning of the electoral system when it is not 
in the throes of a crisis. 

While recognizing that every country is unique and its problems are 
embedded in a specific cultural, political, and institutional context, several lessons 
from the U.S. experience can be instructive beyond its shores. Most famously, 
the United States learned in 2000 how faulty technology (in this instance, punch- 
card ballots) can lead to millions of votes going uncounted. 152 The same could 
be said for problems with ballot design, which led to thousands of voter 
mistakes. 153 Fixing those technological problems proved more difficult than 
people first thought, as precipitous adoption of electronic voting came under fire 
for raising security questions and other concerns. 154 Nevertheless, the academic 
study of lost votes in the wake of the 2000 election provided a continuing gauge 
of the success of technological changes in translating expressed voter preferences 
into counted votes. 

Those studies, however, revealed the importance of looking at the whole 
voting process — from "registration to recounts," as one set of authors describes 
the "election ecosystem" 155 — to assess the proper functioning of an electoral 
system. Once those studies were done, the broader challenge of effective election 
administration came into sharp relief. The extreme decentralization of the U.S. 
system, 156 coupled with the lack of adequate expertise 157 and creeping partisanship 
at every stage, 158 constitute impediments to effective, widespread change that 
might ameliorate well-recognized problems. For international observers of the 
American experience, one lesson to take away is the disconnect between the law 
on the books and the practices on Election Day. As with technology, the impact 
of the finest and most specific laws will ultimately depend on the diligence and 
expertise of those administering them. The registration system is a case in point. 
Fixes put in place following the 2000 election have had a mixed impact, as 
localities and even polling places have varied considerably, for example, as to 
when they will grant a person the opportunity to vote by provisional ballot. 159 



1 52. See supra Part LB. 

1 53. See supra text accompanying notes 50-53. 

1 54. See supra notes 46-47 and accompanying text. 

155. See HUEFNER ET AL., supra note 18, at 11-17. 

156. See supra notes 1-4 and accompanying text. 

1 57. See supra notes 5-7 and accompanying text. 

158. See supra notes 8- 1 4 and accompanying text. 

1 59. See Pew Ctr. on the States, supra note 37, at 5-6. 



20 1 0] WHAT THE WORLD CAN LEARN 1 1 1 



The same could be said for a variety of legal reforms governing elections in the 
United States and beyond: Any system that ultimately relies on humans to guide 
voters through the process and count their votes will fall prey to a series of 
potential human errors. 

Although errors may be an inherent part of the electoral process, they can be 
minimized, and reforms can target errors with particular biases. Such efforts to 
ameliorate the types of problems that disadvantage particular communities, 
parties, or demographic subgroups should be the highest priority for a reform 
agenda in the United States and elsewhere. Although politicians and the public 
should relax their expectations of perfection for election administration, they have 
a right to expect that the imperfections will not put a thumb on the electoral scale 
for a particular group of people. With luck, focusing on that category of reforms 
will translate into widespread public confidence in the electoral system. Even if 
reformers are not so lucky, as can often be the case when confidence is tied to 
general attitudes toward government, addressing problems before they arise in the 
heat of an election can ward against the worst allegations of illegitimacy 
regarding the electoral process. 



Public Rights and Private Rights of Action: 
The Enforcement of Federal Election Laws 



Daniel P. Tokaji" 



Introduction 

In what circumstances should there be a private right of action to sue for 
violations of federal election statutes? 1 Lying at the intersection of federal courts 
and election law, this question has arisen in several recent cases, 2 as private 
litigants have increasingly called upon federal courts to resolve election 
disputes. 3 The question was before the U.S. Supreme Court in Brunner v. Ohio 
Republican Party. 4, The plaintiffs in Brunner alleged that a state chief election 
official had failed to follow the requirements of the Help America Vote Act of 
2002 (HAVA) pertaining to statewide voter registration lists. In a one-paragraph, 
unanimous per curiam opinion, the Court held that a political party could not 
bring suit to enforce this requirement. 5 

The brevity of the Brunner decision masks the significance and complexity 
of the larger question. To be sure, under existing doctrine, the issue before the 
Court in Brunner was not a difficult one. In a series of opinions over the last 
four decades — only one of which involved elections 6 — the Court has sharply 
curtailed the private enforcement of federal statutory mandates. It has 
increasingly refused to imply private rights of action under federal statutes, 
absent a clear congressional intent to create both a right and a remedy. 7 More 
recently, the Court has declined to recognize a cause of action against state and 
local officials under 42 U.S.C. § 1983, unless the federal statute 
"unambiguously" confers an individual right. 8 This is a high bar, one that was 
not satisfied in Brunner, given that the statute in question imposed duties on state 



* Professor of Law, The Ohio State University, Moritz College of Law. The author thanks 
Meredith Bell-Platts, David Gilmartin, Rick Hasen, and Mike Pitts for their helpful comments on 
an earlier draft and Alexander Darr for his outstanding research assistance. 

1 . The terms "private right of action" and "private cause of action" both refer to a non- 
governmental litigant's ability to bring suit to enforce a federal statute. This Article uses the former 
term. 

2. For a discussion of these cases, see infra Part III. 

3. See Richard L. Hasen, The Democracy Canon, 62 STAN. L. Rev. 69, 89-90 (2009) 
(documenting increase in election litigation between 1996 and 2008 and the decreasing percentage 
of that litigation in state courts). 

4. 129 S. Ct. 5, 6 (2008) (per curiam). 

5. Id. 

6. See Cort v. Ash, 422 U.S. 66 (1975), abrogated by Touche Ross & Co. v. Redington, 442 
U.S. 560 (1979), and Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11 (1979). For a 
discussion of Cort and its progeny, see infra Part II. A. 

7. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 293 (2001). 

8. Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002). 



1 14 INDIANA LAW REVIEW [Vol. 44: 1 13 



officials without conferring a right on any identifiable individual. 9 Under 
established doctrine, then, Brunner was a straightforward case. 

The problem is that existing private-right-of-action doctrine fails to account 
for the vital role that federal courts play in overseeing elections in the United 
States, especially through pre-election litigation. This failure is not surprising 
given that the doctrine on private rights of action was fashioned in other contexts. 
This Article argues that existing doctrine, particularly the requirement that there 
be an unambiguously conferred individual right, is inappropriate for alleged 
violations of federal election statutes. 

The availability of a private right of action is especially critical in cases 
arising under election statutes such as HAVA — and the "unambiguously 
conferred right" test especially ill-fitting — for both conceptual and practical 
reasons. On a conceptual level, election cases typically involve non- 
individuated, collective interests. 10 Federal election statutes are not solely aimed 
at protecting the individual right to vote. Although this is one of the interests 
they may promote, federal election statutes also aim to serve systemic interests 
in a fair election process. These interests are not always reducible to individual 
harms and thus cannot adequately be served by a myopic focus on whether the 
statute unambiguously confers an individual right, as existing doctrine demands. 
It follows that the Court's insistence on an unambiguously conferred individual 
right makes little sense in election cases. To apply such a test in the electoral 
context is like trying to pound a square peg into a round hole. 

Existing doctrine is also problematic from a practical perspective, given the 
absence of any institution besides the federal courts with the ability to ensure 
consistency in the interpretation of federal law. The ultimate consequence is to 
leave the interpretation of federal election law in the hands of state officials, 
except in those rare instances when the federal government decides to get 
involved. This is troubling given the partisan affiliation of most state and many 
local election officials, which creates an inherent conflict of interest and makes 
federal judicial oversight especially important. 1 ] In the absence of a private right 
of action, the U.S. Attorney General functions as the gatekeeper to federal court. 
This exacerbates the conflict-of-interest problem, in light of the concerns of 
partisanship that have sometimes surrounded the Justice Department. 12 

For these reasons, this Article argues that the Court should revisit existing 



9. The statute at issue was 42 U.S.C. § 15483 (2006), which is part of HAVA. 

1 0. See Saul Zipkin, Democratic Standing, 26 J.L. & Pol. (forthcoming 2011) (manuscript 
at 1 ) (arguing for broad standing in election law cases because they "often involve[] claims of harm 
to the electorate as a whole or to the democratic process itself). 

11. I discuss the conflict of interest faced by election officials at greater length in Daniel P. 
Tokaji, Lowenstein Contra Lowenstein: Conflicts of Interest in Election Administration, 9 
ELECTION L.J. (forthcoming 2010) [hereinafter Tokaji, Lowenstein Contra Lowenstein]. 

12. See Daniel P. Tokaji, If It 's Broke, Fix It: Improving Voting Rights Act Preclearance, 
49 How. L.J. 785, 798-819 (2006) [hereinafter Tokaji, If It's Broke, Fix It]. It raises the spectre 
of federal election statutes being enforced more aggressively — and perhaps only being enforced — 
where they benefit the party in control of the federal executive branch. 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 1 5 



doctrine on private rights of action under § 1983 to facilitate more robust private 
enforcement of federal election statutes. Part I of this Article traces the evolving 
judicial role in overseeing elections during the past decade. It then puts the 
increased judicialization of U.S. election administration in comparative context 
by examining the electoral role played by politically independent institutions in 
other democratic countries. Part II discusses the Supreme Court doctrine on 
private rights of action, including both implied rights of action and claims under 
§ 1983. In both these lines of precedent, the Court has made it increasingly 
difficult for private litigants to sue under federal statutes and regulations 
generally. As set forth in Part III, this general chariness has been extended — by 
the lower courts and by the Supreme Court in Brunner — to cases alleging 
violations of HAVA and other federal election statutes. Part IV argues that the 
Court's stringent approach to private rights of action is ill-suited to election 
disputes, given that they involved quintessentially public rights for which a 
judicial forum is essential. 

I. Federal Courts as Election Overseers 

Almost a decade has passed since the 2000 presidential election. During this 
period, we have seen both unprecedented legislative attention to the 
administration of elections and a marked increase in election-related litigation. 13 
Although this story is quite familiar to students of U.S. election administration, 
it is necessary to review both the precipitating causes of and the justifications for 
the judiciary's more active involvement in overseeing election, in order to 
contextualize the doctrinal questions surrounding private rights of action. Such 
an examination reveals that federal courts serve a function in the American 
election system comparable to that played by politically independent electoral 
institutions in other countries. 

A. Election Litigation in the United States 

The 2000s began, of course, with the dispute over the outcome of Florida's 
presidential election and the Supreme Court's decision in Bush v. Gore. 14 Shortly 
thereafter, lawsuits were brought in a number of states claiming that the punch- 
card voting systems used in Florida and other states violated federal law, 
including both the U.S. Constitution and the Voting Rights Act. 15 Specifically, 
plaintiffs claimed that these systems systematically disadvantaged voters who 
used them, having a particularly negative impact on minority voters. Two of 
these cases resulted in federal circuit court decisions holding that the use of 



1 3 . See Hasen, supra note 3, at 89 (finding that the number of election-related disputes went 
from an average of ninety-four per year before 2000 to an average of 237 per year in the period 
between 2000 and 2008, peaking at 361 in 2004). 

14. 531 U.S. 98(2000). 

1 5 . For a description of this litigation, see Daniel P . Tokaj i, The Paperless Chase: Electronic 
Voting and Democratic Values, 73 FORDHAM L. REV. 1711, 1729-30, 1742-44, 1748-54 (2005) 
[hereinafter Tokaj i, The Paperless Chase]. 



1 1 6 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



punch-cards violated the Equal Protection Clause, but both these decisions were 
subsequently vacated by en banc courts. 16 Enactment of HAVA, which set new 
voting standards and provided funds for the replacement of antiquated 
equipment, led to the virtual extinction of punch-card machines, while causing 
new disputes to emerge and find their way to federal court. Prominent among 
them were disputes over the security and reliability of touchscreen electronic 
voting systems, with some activists going to court to argue that these machines 
unconstitutionally denied their votes. 17 Challenges to electronic voting 
technology have not fared well in court, but that is not to say that they have been 
without impact. In fact, they have spurred legislative reforms — including the 
implementation of a voter- verified paper audit trail in many states — as well as 
greater administrative attention to the risks associated with new technology. 18 

Voting technology is not the only area in which courts have played a 
prominent role in the past decade. The enactment of HAVA in 2002 led to a new 
round of litigation that continued through the 2008 election season. 19 HAVA 
represented the federal government's most intensive intervention in the 
administration of elections in U.S. history. In addition to spurring the 
replacement of outdated voting equipment, HAVA imposed minimum standards 
for voter registration, provisional voting, and voter identification, applicable 
across the country. It also created an administrative agency, the Election 
Assistance Commission (EAC), to oversee the implementation of these 
requirements. 

The degree of federal involvement in the conduct of elections should not be 
exaggerated. The requirements of HAVA are modest, 20 federal funding for 
elections is limited, and the EAC enjoys little power. While most other 
democracies have strong central election authorities, 21 Congress's decision not 
to create such an entity at the federal level was deliberate. As then- 
Representative Bob Ney, the primary Republican sponsor in the House, stated 



1 6. Stewart v. Blackwell, 444 F.3d 843, 869-70 (6th Cir. 2006), superseded by 473 F.3d 692 
(6th Cir. 2007) (en banc); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882 (9th Cir. 
2003), rev 'd (en banc), 344 F.3d 914 (9th Cir. 2003). The author was an attorney for plaintiffs in 
both cases. 

17. Daniel P. Tokaji, Leave It to the Lower Courts: On Judicial Intervention in Election 
Administration, 68 OHIO St. L.J. 1065, 1077-78 (2007) [hereinafter Tokaji, Leave It to the Lower 
Courts] (discussing these cases); see also Tokaji, The Paperless Chase, supra note 1 5, at 1 800-0 1 , 
1801 n.607. 

18. Tokaji, Leave It to the Lower Courts, supra note 17, at 1078; see also Tokaji, The 
Paperless Chase, supra note 15, at 1774-80, 1791-94 (discussing security and transparency 
concerns associated with electronic voting systems and potential solutions). 

19. See Daniel P. Tokaji, Voter Registration and Institutional Reform: Lessons from a 
Historic Election, 3 HARV. L. & Pol'y Rev. ONLINE 1-2 (Jan. 22, 2009) [hereinafter Tokaji, Voter 
Registration and Institutional Reform], http://www.hlpronline.com/wordpress/wp-concent/ 
uploads/2009/1 l/Tokaji_HLPR_0 12209.pdf. 

20. These requirements are discussed infra Part III.C. 

21. See infra Part I.B. 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 1 7 



during the legislative debate over HAVA, the EAC's title was "not an 
accident." 22 Its purpose was to provide assistance to the states, not to "dictate to 
States how to run their elections" or otherwise "impose its will on the States." 23 
Thus, election administration remains mostly a matter of state law and local 
practice, as has been the case throughout U.S. history. Authority is largely 
devolved to the fifty chief election officials in the states and to thousands of local 
election officials at the state and local level. 24 

Despite the hyper-decentralization of American elections, and at least partly 
because of it, federal judicial oversight of elections has become a prominent 
feature of the post-2000 world. As Professor Rick Hasen has documented, the 
rise in election litigation during the 2000s was accompanied by a decrease in the 
proportion of cases filed in state as opposed to federal court. 25 Over eighty 
percent of election cases in the early 2000s were filed in state court, compared 
to only fifty- four percent in 2008. 26 Interestingly, the federal courts have opened 
their doors to election litigation, 27 even though the U.S. Supreme Court has 
adopted a hands-off posture in the election administration cases that have come 
before it since 2000 28 — and has treated Bush v. Gore as though it does not exist. 29 

In the 2004 election cycle, the State of Ohio provided especially fertile 
ground for federal litigation. The subjects of litigation included voting 
technology, provisional ballots, voter registration, voter identification, challenges 
to voter eligibility, and polling place operations. 30 The new requirements of 
HAVA, and uncertainty over the meaning of some of them, were partly 
responsible for this litigation. For example, voting rights activists in a number 
of states sued to require that provisional ballots be counted even if cast in the 
wrong precinct. 31 New requirements of HAVA also precipitated litigation in the 
2008 election cycle. Most notable were disputes over HAVA's requirement of 
statewide registration databases to replace the local registration lists that 



22. 148 Cong. Rec. H7838 (daily ed. Oct. 10, 2002) (statement of Rep. Ney). 

23. Id. 

24. See Daniel P. Tokaji, The Future of Election Reform: From Rules to Institutions, 28 
Yale L. & Pol'y Rev. 125, 130-3 1 (2009) [hereinafter Tokaji, The Future of Election Reform]. 

25. Hasen, supra note 3, at 90. 

26. Mat 91. 

27. Tokaji, Leave It to the Lower Courts, supra note 1 7, at 1 072. 

28. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (2008) (rejecting 
challenge to Indiana voter identification law without citing Bush v. Gore); Purcell v. Gonzales, 549 
U.S. 1, 5-6 (2006) (reversing injunction against Arizona voter identification law, again without 
citing Bush v. Gore). 

29. See Chad Flanders, Please Don 't Cite This Case! The Precedential Value of Bush v. 
Gore, 1 16 YALE L.J. POCKET PART 141, 143-44 (2006); Adam Cohen, Has Bush v. Gore Become 
the Case That Must Not Be Named?, N.Y. TIMES, Aug. 15, 2006, at A18. 

30. Daniel P. Tokaji, Early Returns on Election Reform: Discretion, Disenfranchisement, 
and the Help America Vote Act, 73 GEO. WASH. L. REV. 1206, 1214-18 (2005) [hereinafter Tokaji, 
Early Returns] . 

31. See id. at 1228-30. 



1 1 8 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



dominated in most states. 32 In Wisconsin and Ohio, conservatives went to court 
seeking to require that new voters' registration information be "matched" against 
information in statewide registration databases 33 — and, as discussed more fully 
below, a case brought by the Ohio Republican Party on this ground made it up 
to the U.S. Supreme Court. For present purposes, the key point is that HAVA's 
new requirements are at least partly responsible for some of the litigation 
surrounding election administration in the post-2000 era. 

It bears emphasis that, despite legal commentators' preoccupation with 
constitutional questions, some of the most important electoral disputes in this 
period have involved questions of federal statutory law — most conspicuously, the 
meaning of HAVA. This is partly attributable to the unavailability of any 
administrative agency with the power to clarify its meaning. The EAC lacks the 
power to promulgate binding regulations, except for in the narrow area of mail 
registration. 34 And in that narrow area, the EAC 's bipartisan structure — with two 
Republicans, two Democrats, and a majority required to take action — has 
predictably led to stalemate on the most significant issue that it has faced. 35 
Absent any other entity able to issue authoritative interpretations of HAVA, the 
courts have stepped in to fill the void, at least in part. They have issued decisions 
on whether states must count provisional ballots cast out of precinct, 36 whether 
states should issue provisional ballots to those who requested (but did not cast) 
an absentee ballot, 37 and, before the Court's ruling in Brunner, on the extent of 
states' obligations to match voter registration information against other 
databases. 38 While HAVA is the most important federal statute governing the 
administration of elections, it is not the only one whose meaning has become the 
subject of litigation. The past decade has also seen litigation over the National 
Voter Registration Act (NVRA), 39 a provision of the Civil Rights Act of 1964 
concerning voter registration (42 U.S.C. § 1971), the Uniformed and Overseas 
Citizens Absentee Voting Act (UOCAVA), and, of course, the Voting Rights Act 



32. Daniel P. Tokaji, Voter Registration and Election Reform, 17 Wm. & MARY BILL Rts. 
J. 453, 471 (2008) [hereinafter Tokaji, Voter Registration and Election Reform]. 

33. Brunner v. Ohio Republican Party, 129 S. Ct. 5, 6 (2008); Order at 4, Van Hollen v. 
Gov't Accountability Bd., No. 08-cv-004085 (Wis. Ct. App. Oct. 23, 2008), available at 
http://moritzlaw.osu.edu/electionlaw/litigation/vanhollenv.gab.php. I have discussed the legal issue 
in these cases in some detail in Tokaji, Voter Registration and Institutional Reform, supra note 19, 
at 8-11. 

34. 42 U.S.C. § 15329(2006). 

35. See Tokaji, The Future of Election Reform, supra note 24, at 1 35. That issue concerned 
the State of Arizona's requirement of proof of citizenship for voter registration. Id. 

36. Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 578 (6th Cir. 2004) 
("There is no reason to think that HAVA . . . should be interpreted as imposing upon the states a 
federal requirement that out-of-precinct ballots be counted. . . ."). 

37. White v. Blackwell, 418 F. Supp. 2d 988, 991 (N.D. Ohio 2006). 

38. Ohio Republican Party v. Brunner, 544 F.3d 7 1 1 (6th Cir.) (en banc), vacated, 129 S. Ct. 
5 (2008). 

39. 42 U.S.C. §§ 1973gg-1973gg-10 (2006). 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 1 9 



(VRA). 

The active role of federal courts in overseeing election administration is 
understandable and, I contend, desirable. 40 With no administrative agency able 
to issue authoritative guidance on the meaning of federal law, courts are the only 
option. Otherwise, the interpretation of HAVA's requirements would be left to 
chief election officials in the states and to local election officials. This is 
problematic not only because it compromises the uniform implementation of 
federal law across the country, but also because of the partisanship that pervades 
state and local election administration. Election officials are typically elected or 
selected as representatives of their party, raising troubling questions about their 
impartiality. The majority of state chief election officials, usually the secretary 
of state, are elected as candidates of their party. 41 Even where state chief election 
officials are appointed rather than elected, the appointing authority is typically 
a partisan elected official. This arrangement is also problematic, raising doubts 
about whether the political appointee can be trusted to implement the law 
evenhandedly. A similar problem exists in many, though not all, localities. Most 
jurisdictions still elect their local election officials, and party-affiliated officials 
run elections in almost half of U.S. jurisdictions. 42 

Thus, despite the significant changes that have occurred in U.S. elections 
since 2000, the allocation of institutional authority remains largely unchanged. 
While HAVA was the federal government's most significant intervention in 
election administration in U. S . history, most day-to-day responsibility for running 
elections still lies at the state and local levels. American election administration 
thus remains very decentralized. Nor has there been much change in the 
partisanship of U.S. election administration. For all the criticism leveled at 
Florida's Secretary of State Katherine Harris in 2000 and Ohio's Secretary of 
State Ken Blackwell in 2004, party-affiliated state chief election officials are still 
the norm. This does not necessarily mean that election officials will discharge 
their duties in a biased manner; nor is it easy to discern when they are doing so. 
It does, however, create an inherent conflict of interest between election 
officials' duty to implement election laws impartially and the temptation to serve 
the political interests of their parties or themselves. The major institutional 
change that has occurred is the increased engagement of the federal judiciary, 
which serves as a vital check upon the otherwise decentralized and partisan 
administration of U.S. elections. 43 



40. Tokaji, The Future of Election Reform, supra note 24, at 149-53. 

41. Richard L. Hasen, Beyond the Margin of Litigation: Reforming U.S. Election 
Administration to Avoid Electoral Meltdown, 62 WASH. & LEE L. REV. 937, 974 (2005). 

42. David C. Kimball et al., Helping America Vote? Election Administration, Partisanship, 
and Provisional Voting in the 2004 Election, 5 ELECTION L.J. 447, 453 (2006); see also David C. 
Kimball & Martha Kropf, The Street-Level Bureaucrats of Elections: Selection Methods for Local 
Election Officials, 23 Rev. Pol'y Res. 1257, 1261-62 (2006) (showing methods of selection in 
4566 local electoral jurisdictions). 

43 . I elaborate on this argument elsewhere. See Tokaj i, The Future of Election Reform, supra 
note 24, at 149-53; Tokaji, Lowenstein Contra Lowenstein, supra note 11. 



1 20 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



B. A Comparative Perspective 

In both its decentralization and its partisanship, American democracy is 
distinctive. 44 These peculiar characteristics of our election systems make the 
federal courts important institutional players when it comes to the administration 
of elections. 45 To see why, it is helpful to compare U.S. electoral institutions to 
those in other countries, as well as international norms of election management. 
Two countries — India and France — provide particularly helpful points of 
comparison in understanding the vital role of the federal judiciary in overseeing 
U.S. elections. 

The spread of democracy around the world is perhaps the most important 
global trend of recent decades. With this spread has come increasing attention 
to the characteristics that are necessary for a trustworthy and stable democratic 
system. Independence from partisan politics is increasingly viewed as a 
necessary component of such a system. As the influential European Commission 
for Democracy Through Law (also known as the "Venice Commission") has put 
it: "Only transparency, impartiality and independence from politically motivated 
manipulation will ensure proper administration of the election process, from the 
pre-election period to the end of the processing of results." 46 

Democratic countries vary dramatically in the degree to which they satisfy 
this ideal. Globally, election management bodies can be divided into three broad 
categories. 47 The first and most common is an independent electoral commission, 
the structure that is now employed in most democratic countries. 48 The 
advantage of this model is that it tends to promote impartiality by insulating those 
running the election from political pressures. This is consistent with a growing 



44. Richard H. Pildes, The Supreme Court, 2003 Term — Foreword: The 
Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 29, 82 (2004); Daniel P. Tokaji, 
The Birth and Rebirth of Election Administration, 6ELECTI0NLJ. 118, 121 (2007) (reviewing ROY 
G. Saltman, The History and Politics of Voting Technology: In Quest of Integrity and 
Public Confidence (2006)). 

45 . See Pildes, supra note 44, at 83 ("Courts ... are the primary American institution capable 
under current circumstances of addressing the central structural problem of self-entrenchment."). 

46. European Commission for Democracy Through Law ["Venice Commission"], Code of 
Good Practice in Electoral Matters, at 26, CDL-AD (2002) 23 (Oct. 30, 2002) (emphasis added), 
<3va/7a/?/e<3?http://www.venice.coe.int/docs/2002/CDL-AD(2002)023-e.pdf. 

47. I discuss these in somewhat greater detail in Tokaji, The Future of Election Reform, supra 
note 24, at 137-41. 

48. Rafael Lopez-Pintor, UN Dev. Programme, Electoral Management Bodies as 
Institutions of Governance 120 (2000), available at http://www.undp.org/governance/docs/ 
Elections-Pub-EMBbook.pdf; see also Louis Massicotteetal., Est ablishing the Rules of the 
Game: Election Laws in Democracies 83-96 (2004); Oliver Ihl, Electoral Administration, in 
Encyclopedia of European Elections 87, 87-89 (Yves Deloye & Michael Bruter eds., 2007). 
All three of these sources describe the institutions that are responsible for managing elections in 
democratic countries. The discussion in the text mostly follows Lopez-Pintor' s taxonomy. 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 2 1 



recognition that such impartiality is essential to a fair democratic process. 49 
Among the countries employing this model are Australia, 50 Canada, 5 ' and India. 52 
The second category of election management is to entrust a government ministry 
with authority to oversee elections. 53 From the standpoint of ensuring 
independence from partisan politics, this structure might seem problematic, but 
it is the norm in many western European countries with a strong democratic 
tradition, including Belgium, Denmark, and Sweden. 54 The success of this model 
is probably attributable to the existence of a core of professional civil servants 
who are sufficiently insulated from political pressures. 55 The third model is for 
authority to be divided among different entities. Authority may be divided 
vertically, as in the U.S. system in which federal, state, and local actors have 
authority over elections. This dispersal of authority makes it difficult for any one 
group to "steal" an election, but, as I have already suggested, it also makes it 
difficult to ensure equal treatment across jurisdictions. Another way of dividing 
power is to do so horizontally, among different components of the national 
government. The leading example is the French system, in which a ministry runs 
presidential elections under the supervision of judicial actors. 56 Dividing 
authority in this way may also provide some assurance of impartiality, insofar as 
a relatively independent entity is looking over the shoulder of the government 
officials who are actually running the election. 

The first model, an independent electoral commission, is properly viewed as 
the gold standard when it comes to election management. 57 Yet the United States 
and virtually all the individual states lack politically insulated bodies of this 
nature to run their elections. 58 The United States also lacks a core of professional 



49. Int'l Inst, for Democracy and Electoral Assistance, International Elections 
Standards: Guidelines for Reviewing the Legal Framework of Elections 37 (2002), 
available at http://www.idea.int/publications/ies/index.cfm (recognizing an "autonomous and 
impartial" electoral management body as an international election standard). 

50. M ASSICOTTE ET AL., supra note 48, at 90-9 1 ; Lopez-Pintor, supra note 48, at 27-28, 3 1 . 

51. Frank Emmert et al., Trouble Counting Votes? Comparing Voting Mechanisms in the 
United States and Selected Other Countries, 41 CREIGHTON L. Rev. 3, 25 (2008). 

52. David Gilmartin, One Day's Sultan: T.N. Seshan and Indian Democracy, 2 
Contributions to Indian Sociology 247 (2009) (describing how India's electoral commission 
functions); Lopez-Pintor, supra note 48, at 27-28. 

53. Lopez-Pintor, supra note 48, at 24. 

54. Id. at 27, 59. 

55. See Tokaji, The Future of Election Reform, supra note 24, at 140; see also Venice 
Commission, supra note 46, at 26 ("In states where the administrative authorities have a long- 
standing tradition of independence from the political authorities, the civil service applies electoral 
law without being subjected to political pressures. It is therefore both normal and acceptable for 
elections to be organised by administrative authorities, and supervised by the Ministry of the 
Interior."). 

56. Lopez-Pintor, supra note 48, at 22, 60-61 . This model is discussed further below. 

57. See Venice Commission, supra note 46, at 26. 

58. The only real exception is the State of Wisconsin, which has a Government 



1 22 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



and politically independent civil servants that is needed in order to entrust 
election administration to a government ministry. This type of system is the 
norm, however, in most U.S. states. 

To understand both of these shortcomings of election administration in the 
United States, it is helpful to contrast our system with that of the world's largest 
democracy: India. With an election administration apparatus that is both 
centralized and insulated from partisan politics, India is the polar opposite of the 
United States. To American observers, the degree of independence that India's 
Election Commission ("the Commission") enjoys — as well as the scope of 
authority it enjoys in executing its responsibilities — is almost unimaginable. 59 
The Commission was established by India's 1950 Constitution, which gave it 
authority over the management of parliamentary and state legislative elections. 60 
Over the ensuing six decades, the Commission has established broad control over 
the management of elections, with the assistance of India's Supreme Court, 
which has held that the Commission enjoys a broad "power to make all necessary 
provisions for conducting free and fair elections." 61 During the 1990s, under the 
leadership of Chief Election Commissioner T.N. Seshan, the Commission 
successfully increased its authority during "electoral time," while successfully 
fending off attempts to compromise its independence. 62 

The degree of control that the Commission enjoys during electoral time is 
enormous. During the period before and during an election, the Commission has 
almost plenary authority to commandeer government workers from other 
government agencies, to put them in service of running elections. 63 The 
Commission's ability to draw on a professional cadre of civil servants — in 
contrast to the largely volunteer force that U.S. jurisdictions must mobilize on its 
election days — provides it with a noteworthy advantage. The Commission has 



Accountability Board that is responsible for overseeing elections. See Steven F. Huefner, Daniel 
P. Tokaji & Edward B. Foley, From Registration to Recounts: The Election Ecosystems 
of Five Midwestern States 115-17 (2007); http://moritzlaw.osu.edu/electionlaw/projects/ 
registration-to-recounts/index.php. 

59. See Christopher S. Elmendorf, Election Commissions and Electoral Reform: An 
Overview, 5 Election L.J. 425, 429 (2006) (identifying India's Election Commission as leading 
example of an entity empowered to make and enforce election rules). 

60. Under the Constitution of India, the Commission is responsible for the "superintendence, 
direction and control of the preparation of the electoral rolls for, and the conduct of, all elections 
to Parliament and to the Legislature of every States and of elections to the offices of President and 
Vice-President." India Const. Dec. 1,2007, art. 324, § 1 ; see also Vassia Gueorguieva & Rita 
S. Simon, Voting and Elections the World Over 143-48 (2009) (describing structure and 
functions of India's Election Commission). 

61. Elmendorf, supra note 59, at 429 (quoting Union of India v. Ass'n for Democratic 
Reforms, 2 L.R.I. 305 (2002)). 

62. Gilmartin, supra note 52, at 253. For an illuminating discussion of restrictions on 
political expression during electoral time, see Samuel Issacharoff, Fragile Democracies, 1 20 Harv. 
L. REV. 1405, 1423-29 (2007). 

63. Gilmartin, supra note 52, at 254-55. 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 23 



also promulgated a Model Code of Conduct that is in force during electoral 
time. 64 Accordingly, it enjoys the authority to punish violations through the 
threat of cancelling or nullifying elections. 65 As a practical matter, then, the 
Commission enjoys extremely broad authority during electoral time, and it has 
often made and implemented rulings that are unpopular with the ruling party. 66 
It also enjoys a high degree of credibility with the public compared to other 
institutions, even including India's judiciary. 67 The independence and status of 
the Commission has allowed India's judiciary, including its Supreme Court, to 
play a back-seat role in overseeing elections. Indian courts have adopted a highly 
deferential posture toward rulings of the Commission made during electoral 
time. 68 

The Indian Election Commission's broad powers during electoral time, along 
with the widespread perception that it stands "above politics," 69 gives it a status 
that election management bodies in the United States simply do not enjoy. It may 
eventually be possible to develop comparably independent electoral institutions 
in the United States. Indeed, the State of Wisconsin has recently attempted to do 
so, through the creation of a Government Accountability Board staffed with 
former judges, who must be confirmed by a supermajority of the state 
legislature — a structure that is designed to ensure impartiality in the Board's 
operations. 70 For the time being, however, election administration is likely to 
remain in the hands of party-affiliated actors in most U.S. states and many 
localities. Therefore, in the here and now, there must be some means by which 
to induce those officials to act impartially. As the U.S. institution that is most 
insulated from partisan politics, the federal judiciary is best suited to perform this 
function. 71 

To understand the functional role that federal courts can and should play in 
the United States, it is helpful to compare the French electoral system. France 
has a more centralized system than the United States. 72 The Ministry of Internal 



64. Id. 

65. Id. at 256. 

66. Id. at 257. 

67. Peter Ronald deSouza, The Election Commission and Electoral Reforms in India, in 
Democracy, Diversity, Stability: 50 Years of Indian Independence 51, 52-53 (1998). 

68. Anurag Tripathi, Election Commission of India: A Study 1 9 (manuscript Mar. 1 9, 20 1 0), 
available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=l 575309 ( "The Supreme Court 
of India has held that where the enacted laws are silent or make insufficient provision to deal with 
a given situation in the conduct of elections, the Election Commission has the residuary powers 
under the Constitution to act in an appropriate manner."). 

69. Gilmartin, supra note 52, at 28 1 . 

70. HUEFNER,TOKAJl&FOLEY,5wpranote58, at 115; Tokaji, The Future of Election Reform, 
supra note 24, at 144. 

7 1 . See Pildes, supra note 44, at 83. 

72. Noelle Lenoir, Constitutional Council Review of Presidential Elections in France and 
a French Judicial Perspective on Bush v. Gore, in THE LONGEST NIGHT: POLEMICS AND 
Perspectives on Election 2000, at 295, 305-06 (Arthur J. Jacobsen & Michael Rosenfeld eds., 



1 24 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



Affairs oversees elections throughout the country, but (as in the United States) 
authority is dispersed among local entities. 73 The most significant feature of 
France's election system — one that is both similar to and different from the 
United States — is the role that courts play in overseeing elections. 74 The 1958 
Constitution created the French Constitutional Council and entrusted it with 
responsibility for resolving disputes in presidential and parliamentary elections, 75 
while administrative courts (with the Conseil d'Etat at the top of the ladder) have 
responsibility for regional and local elections. 76 These bodies, while usually 
characterized as courts, serve both a judicial and an administrative function when 
it comes to elections, including responsibility for the counting of votes and 
announcement of results. 77 For presidential elections, the Constitutional Council 
"monitors the whole chain of electoral operations from the beginning of the 
preparation of the instruments organizing the election to the declaration of the 
final results and the name of the elected president." 78 In terms of the number of 
decisions it issues, the Constitutional Council is predominantly an electoral court, 
with three-quarters of its decisions involving elections, with the number of 
decisions increasing sharply in the 1990s. 79 It has been described as an "engine 
by which the 'judicialization of polities' has grown in France." 80 Its functions 
include advising the government on actions concerning elections, considering the 
legality of administrative actions, providing information for voters, supervising 
the conduct of elections and reporting incidents, and announcing the results. 81 
The Constitutional Council thus plays an active role before, during, and after 
elections, functioning as a sort of "election monitor." 82 

The jurisdiction of the French Constitutional Council extends well beyond 



2002). 

73. GUEORGUIEVA & SlMON, supra note 60, at 45. 

74. Lopez-Pintor, supra note 48, at 60-6 1 . 

75. 1958 Const, art. 58 (Fr.) ("(1) The Constitutional Council shall ensure the regularity of 
the election of the President of the Republic. (2) It shall examine complaints and shall proclaim 
the results of the vote."); see also Lenoir, supra note 72, at 297; Lopez-Pintor, supra note 48, at 
61. 

76. LOPEZ-PINTOR, supra note 48, at 60-6 1 ; Kieran Williams, Judging Disputed Elections 
in Europe, 8 ELECTION L.J. 277, 278 (2009). 

77. LOPEZ-PINTOR, supra note 48, at 61 ; Lenoir, supra note 72, at 299. But see Williams, 
supra note 76, at 278 (noting that the Constitutional Council "sits outside the judiciary and is 
composed as much of onetime politicians . . . and civil servants as of career judges"). 

78. Lenoir, supra note 72, at 299. 

79. Sylvain Brouard, The Constitutional Council: The Rising Regulator of French Politics, 
in The French Fifth Republic at Fifty: Beyond Stereotypes 99, 106-07 (Sylvain Brouard et 
al. eds., 2009). 

80. Id. at 1 16 (citation omitted). 

8 1 . Jean-Louis Debre, President, Constitutional Council, Statement on the Role of the French 
Constitution Council in National Polls (July 16, 2007), available at http://www.conseil- 
constitutionnel/root/bankmm/pdf/Conseil/200707 1 6Debre.pdf. 

82. Lenoir, supra note 72, at 304. 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 25 



that of federal courts in the United States. The Council considers matters that 
would be deemed nonjusticiable political questions in the U.S. federal courts. 
At the same time, a fruitful comparison can be made in the broad range of topics 
the Constitutional Council addresses. It considers questions that arise before, 
during, and after elections, providing a check on the ministry that runs the 
election. In effect, this allows the Constitutional Council to look over the 
shoulder of the government officials running elections. 

Comparison of the U.S. system with that of India and France thus helps 
illuminate the role that the judiciary — and specifically the federal courts — plays 
in the administration of elections. The increased role of courts, especially the 
federal courts, in overseeing the conduct of elections can be seen as a response 
to the decentralization and partisanship of U.S. elections. For the most part, 
election administration in the United States remains a matter of state law and 
local practice. The United States lacks an independent electoral commission like 
India's and does not have courts that are specifically entrusted with a broad- 
ranging review of the conduct of elections, as in France. With the enactment of 
HAVA's new nationwide requirements in 2002, and without a federal agency 
capable of promoting consistency in the interpretation of the law, federal courts 
were left to fill this void. 83 Given the absence of other U.S. institutions that are 
sufficiently insulated from partisan politics, the federal courts are best suited to 
perform this role. Unfortunately, as I shall explain in Parts II and III, federal 
courts are hampered by the restrictive legal doctrine on when private litigants can 
bring suit to enforce federal statutory law. 

II. Private Rights of Action 

As explained in Part I, federal courts play an important role with respect to 
the conduct of U.S. elections. For the most part, the United States lacks election 
management bodies that are independent of partisan politics as in India, or a 
formal system of dividing electoral authority as in France. While it would be 
naive to believe that judges are apolitical, federal courts enjoy greater insulation 
from politics than the other players in our election system. Accordingly, it is 
valuable for those courts to look over the shoulder of party-affiliated election 
officials. One way of doing so is through constitutional adjudication, though this 
is an awkward tool at best. Constitutionalizing election rules may strain judicial 
competence. It may also induce even greater resentment by the losing side, given 
the practical impossibility of overruling a constitutional ruling as opposed to a 
statutory one. Greater constitutionalization of election administration is also an 
enterprise that the U.S. Supreme Court has been reluctant to engage in — as 
suggested by its reluctance even to cite Bush v. Gore* 4 in the decade after which 
that momentous case was decided. 85 

An alternative means for federal courts to oversee the administration of 



83. 42 U.S.C. §§ 15301-15545 (2006 & Supp. 2008). 

84. 531 U.S. 98(2000). 

85. Flanders, supra note 29, at 144; Cohen, supra note 29. 



126 INDIANA LAW REVIEW [Vol. 44: 1 13 



elections is through their interpretation of the federal statutes governing this area, 
most notably HAVA. The federal courts have decided some important cases 
under federal election administration statutes in recent years. 86 Yet their ability 
to act in this area is impeded by two obstacles. One is the absence of an express 
private right of action under HAVA and some other election statutes. The other 
is the restrictive doctrine that the Supreme Court has crafted over the past four 
decades, on when a private right of action may be implied — either directly or 
under §1983. 

A. Implied Rights of Action 

Common law courts generally permitted private persons claiming a violation 
of state statutes to seek redress, so long as they were among the class the statute 
purported to protect. 87 The implication of a right of action is rooted in the 
Blackstonian principle, famously asserted in Marbury v. Madison?* that "where 
there is a legal right, there is also a legal remedy." 89 In Texas & Pacific Railway 
Co. v. Rigsby, decided in 1916, the Supreme Court explicitly recognized that a 
plaintiff could bring suit under a federal statute that did not expressly create a 
private right of action. 90 According to Rigsby, "disregard of the command of the 
statute is a wrongful act, and where it results in damage to one of the class for 
whose especial benefit the statute was enacted, the right to recover damages from 
the party in default is implied." 91 Despite this pronouncement, it was not very 
common for the Supreme Court to imply private rights of action for the next half 
century or so. 92 



86. See generally Tokaji, Early Returns, supra note 30; Tokaji, Voter Registration and 
Election Reform, supra note 33; Tokaji, Voter Registration and Institutional Reform, supra note 
19. 

87. Cass R. Sunstein, Section 1 983 and the Private Enforcement of Federal Law, 49 U. Chi. 
L. Rev. 394,411-12(1982). 

88. 5 U.S. (1 Cranch) 137 (1803). 

89. Id. at 163 (quoting 3 William Blackstone, Commentaries 23); see also Marsha S. 
Berzon, Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts, 
84 N.Y.U. L. Rev. 68 1 , 696 (2009) (describing roots of implied right of action doctrine in Marbury 
and Blackstone). 

90. Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 41 (1916). 

91. Mat 39. 

92. Lisa E. Key, Private Enforcement of Federal Funding Conditions Under § 1983: The 
Supreme Court's Failure to Adhere to the Doctrine of Separation of Powers, 29 U.C. DAVIS L. 
REV. 283, 294 (1996); see also Cannon v. Univ. of Chi., 441 U.S. 677, 733 (1979) (Powell, J., 
dissenting ) (asserting that, for almost fifty years after Rigsby, the only other statute under which 
the Court had recognized an implied right of action was the Railway Labor Act of 1926). This 
appears to be a disputed point. Professor Sunstein asserts that federal courts used their common 
law powers recognized in Swift v. Tyson to permit rights of action for violations of federal law, even 
after Erie Railroad v. Tompkins. Sunstein, supra note 87, at 4 1 1 - 1 2. But Professor Sunstein does 
not cite any Supreme Court decisions actually doing so between Rigsby and Borah. See Richard 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 27 



Implying a right of action for violations of federal laws allowed non- 
governmental entities to serve as private attorneys general, a "progressive" legal 
reform supported by liberals and conservatives alike. 93 The case that did most 
to encourage the implication of private rights of action was the Supreme Court's 
1964 decision in J.I. Case Co. v. Borak. 94 Plaintiff Borak was a shareholder of 
defendant corporation alleged to have made a deceptive proxy solicitation in 
violation of § 14(a) of the Security and Exchange Act of 1934. 95 The Court 
acknowledged that the language of the statute "makes no specific reference to a 
private right action," but adverted to the underlying purposes of the statutes, most 
notably "'the protection of investors,' which certainly implies the availability of 
judicial relief where necessary to achieve that result." 96 The Court also took 
notice of the fact that the harm asserted "results not from the deceit practiced on 
him alone but rather from the deceit practiced on the stockholders as a group." 91 
The collective nature of the harm made a private right of action especially vital 
in the Court's view. 98 As Richard Stewart and Cass Sunstein have explained, the 
reason for creating a right of action was to protect "a diffuse collective good," 
rather than simply to provide redress to individual victims. 99 Even though the 
Securities and Exchange Commission had the concurrent power to enforce § 
14(a), leaving enforcement to this agency alone was inadequate given its limited 
ability to thoroughly examine all the proxy statements it received and assess the 
harms that might be done by misrepresentations. The federal courts, therefore, 
had not just the power but the duty to provide remedies necessary to effectuate 
Congress ' s purpose — including both prospective relief and damages — despite the 
fact that the statute did not explicitly authorize shareholders like Borak to sue. 100 
Put simply, the Court believed a private right of action was necessary to make the 
statute work. 101 

Borak triggered a wave of decisions in the next decade implying private 
rights of action under various federal statutes. 102 During this golden era for 



B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1 193, 
1300-06 (1982) (reviewing history of private rights of action in various contexts). 

93. Michael Waterstone, A New Vision of Public Enforcement, 92 Minn. L. Rev. 434, 442 
(2007). 

94. 377 U.S. 426(1964). 

95. Mat 427. 

96. Id. at 432 (quoting Security and Exchange Act of 1934, 15 U.S.C. § 78n(a) 
(2006)). 

97. Id. (emphasis added). 

98. Mat 432-33. 

99. Stewart & Sunstein, supra note 92, at 1303. 

100. Borak, 377 U.S. at 433. 

101. Berzon, supra note 89, at 697. 

1 02. Key, supra note 92, at 294-95; see also Peter W. Low & John C. Jeffries, Jr., Federal 
Courts and the Law of Federal-State Relations 164 (6th ed. 2008) ("In the decade following 
[Borak], the lower courts routinely recognized private rights of action to enforce federal regulatory 
provisions."); Bradford C. Mank, Suing Under § 1983: The Future After Gonzaga University v. 



128 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



implied rights of action, the principal focus was on whether the statute protected 
a special class of people that included the plaintiff. 103 If they were, then a private 
right of action was generally implied. Among the laws under which the Supreme 
Court recognized private rights of action were statutes regulating the financial 
sector 104 and protecting civil and political rights. 105 

An example is Allen v. State Board of Elections™ 6 in which the Court 
implied a right of action for voters claiming that their states had implemented 
new electoral rules without complying with § 5 of the then-new Voting Rights 
Act of 1965. 107 Under § 5, covered jurisdictions — at the time, states and political 
subdivisions in the South — are required to obtain preclearance of electoral 
changes before those changes may go into effect. At issue in Allen was whether 
the states' electoral changes counted as "qualification or prerequisite to voting, 
or standard, practice, or procedure with respect to voting" which had to be 
precleared. 108 Allen is mostly known for its capacious interpretation of § 5, 
holding that it is not limited to practices limiting who may vote but also includes 
at-large election schemes and other rules that might limit the effectiveness of 
minority votes 109 — in other words, that § 5 applies to vote dilution as well as vote 
denial. 110 But Allen is also important for its holding that private citizens had a 
right to sue states that had failed to obtain § 5 preclearance. The VRA did not 
explicitly grant minority voters the right to sue in these circumstances, and the 
Court might have held that only the U.S. Department of Justice could sue to stop 
a state from implementing an un-precleared electoral change. l ' ' The Allen Court, 



Doe, 39 Hous. L. Rev. 1417, 1423 n.31 (2003) (noting that the Supreme Court and lower courts 
found implied rights of action under several statutes between 1964 and 1975). 

103. Key, supra note 92, at 295 (citing Stephen E. Ronfeldt, Implying Rights of Action for 
Minorities and the Poor Through Presumptions of Legislative Intent, 34 HASTINGS L.J. 969, 977 
(1983)). 

104. See Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 (1972); Mills v. Elec. 
Auto-Lite Co., 396 U.S. 375 (1970). 

105. See Cannon v. Univ. of Chi., 441 U.S. 677 (1979); Allen v. Bd. of Elections, 393 U.S. 
544(1969). 

106. 393 U.S. 544(1969). 

107. Mat 548. 

108. Id. at 563 (quoting 42 U.S.C. § 1973c (2006)). 

109. Id. at 565-66. 

1 10. For a discussion of this distinction and Allen's significance in extending § 5 to vote 
dilution, see Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting 
Rights Act, 57 S.C. L. REV. 689, 691-92, 703 (2006) [hereinafter Tokaji, The New Vote Denial]. 

111. The Court would later distinguish Allen in Morris v. Gressette, 432 U.S. 491 (1977), 
which held that the Justice Department's right to grant administrative preclearance under § 5 is not 
subject to judicial review. Id. at 506-07. In that case, voters sought to challenge the Justice 
Department's decision not to object to a South Carolina reapportionment plan. Id. at 493. The 
majority relied on the legislative history of the VRA, which it characterized as showing Congress's 
intent to provide speedy method of complying with § 5. Id. at 503. Because judicial review of 
decisions granting preclearance would delay resolution of § 5 disputes, the Court concluded that 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 29 



however, concluded that the VRA's goals "could be severely hampered ... if 
each citizen were required to depend solely on litigation instituted at the 
discretion of the Attorney General." 112 As in Borah, the Court alluded to the 
limited enforcement resources at the government's disposal and Congress's intent 
to protect a class of citizens. 1 13 The collective nature of the harm — including the 
representational injury to minorities whose voting strength was diluted — were 
thus an important part of the justification for implying a right of action. 114 

The decline of implied rights of action began just over a decade after Borah, 
with the unanimous decision in Cort v. Ash. U5 Cort was both an election case 
(like Allen) and a shareholder derivative case (like Borah). Plaintiff Ash was a 
shareholder seeking to sue Bethlehem Steel and its directors for violations of 
criminal provisions of the Federal Election Campaign Act (FECA) Amendments 
of 1974. 116 Specifically, Ash alleged that the corporation and its directors had 
violated a federal law 117 prohibiting corporations from making contributions or 
expenditures in connection with a federal election, seeking both injunctive relief 
and damages. 1 18 Justice Brennan's opinion for the Court first concluded that the 
administrative procedure set forth in the FECA amendments, under which 
complaints were to be filed before the newly created Federal Election 
Commission (FEC), was the sole means by which to secure injunctive relief for 
violations of § 610 in future elections. 119 Turning to the shareholders' damages 
claim, the Court articulated a four-factor test for ascertaining whether a cause of 
action should be implied: (1) whether plaintiff is "one of the class for whose 
especial benefit the statute was enacted"; (2) whether there is "any indication of 
legislative intent, explicit or implicit, either to create such a remedy or to deny 
one"; (3) whether implication of a right of action is "consistent with the 
underlying purposes of the legislative scheme"; and (4) whether the claim is one 
"traditionally relegated to state law, in an area basically the concern of the 
States," thus making implication of a private right of action under federal law 
inappropriate. 120 While the Court noted the absence of any indication that 
Congress intended civil enforcement of § 6 1 0, its analysis rested primarily on the 
fact that protection of shareholders was, at best, a subsidiary purpose of the 



Congress could not have intended these decisions to be reviewable. Id. at 506-07. 

112. Allen, 393 U.S. at 556. 

113. Mat 557. 

114. In a later decision, Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), a 
majority of the Court relied on Allen to find an implied right of action to enforce § 1 of the VRA, 
which prohibits poll taxes. Id. at 230-35; id. at 240 (Breyer, J., concurring). 

115. 422 U.S. 66 (1975), abrogated by Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) 
and Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 1 1 (1979). 

116. Id. at 66. 

117. 18 U.S.C. §610(2009). 

118. Cort, 422 U.S. at 71-72. 

119. Id. at 75-76. 

120. Id. at 78. 



1 30 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



statute. 121 According to the Court, Congress's main motivation was to reduce the 
influence of money on federal elections. 122 The absence of a "clearly articulated 
federal right in the plaintiff led the Court to decide against implying a right of 
action. 123 

Although Cort denied a private right of action, its reasoning is consonant 
with Borak. In both cases, the central question was whether the plaintiff was part 
of the class that the statute was designed to protect. In addition, Cort left room 
for courts to consider the policy implications of implying a private right of 
action, including whether it would help or hurt the underlying regulatory 
scheme. 124 

At the same time, the Cort test suggests an underlying tension between two 
different conceptions of whether a private right of action should lie. 125 On one 
view, the one borrowed from Borah, the question is whether the statute was 
designed to benefit an identifiable class of persons that includes the plaintiff. 126 
On the other view, the question is whether Congress intended to confer a right 
of action on private plaintiffs. 127 

The tension between these perspectives, latent in Cort, came to a head four 
years later in Cannon v. University of Chicago. 128 The plaintiff in Cannon 
alleged that she had been denied admission to federally funded educational 
institutions on the basis of her sex, in violation of Title IX of the Civil Rights 
Act. 129 The majority opinion, authored by Justice Stevens, applied the Cort 
factors to find an implied right of action for injunctive relief. 130 Although 
affirmative evidence of a congressional intent to confer a right of action was 
lacking, the Court rested heavily on the fact that the statute was designed to 
benefit a class, of which the plaintiff was a member. 131 It also relied on the 
"contemporary legal context" of the statute. 132 The statute was enacted during 
the period after Borah and before Cort, during which private rights of action were 
routinely implied, and it was appropriate to presume congressional familiarity 
with these precedents. 133 Justice Powell's dissent, by contrast, insisted that 



121. Id. at 80-81. 

122. Id. at 81-82. 

123. Id. 

124. Sunstein, supra note 87, at 412. 

125. See Michael A. Mazzuchi, Note, Section 1983 and Implied Rights of Action: Rights, 
Remedies, and Realism, 90 MlCH. L. Rev. 1062, 1078 (1992). 

126. Bruce A. Boyer, Note, Howard v. Pierce: Implied Causes of Action and the Ongoing 
Vitality o/Cort v. Ash, 80 Nw. U. L. REV. 722, 732 (1985). 

1 27. Id. This view is evident in Justice Powell's opinion for the Court in Morris v. Gressette, 
discussed supra note 111. 

128. 441 U.S. 677(1979). 

129. Id. at 677. 

130. Id. at 689-709. 

131. Id. at 693-94. 

132. Id. at 699. 

133. Id. at 731-32 (Powell, J., dissenting). 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 3 1 



clearer evidence of Congress's intent to confer a private right of action was 
required. Taking issue with Corfs four-factor test, Justice Powell insisted that 
"[a]bsent the most compelling evidence of affirmative congressional intent, a 
federal court should not infer a private cause of action." 134 The only factor that 
should matter, in Justice Powell's view, was congressional intent to create a right 
of action. To consider other factors, he argued, was an "open invitation to 
federal courts to legislate causes of action not authorized by Congress," running 
afoul of the principle of separation of powers. 135 

Although Justice Powell's position did not carry the day in Cannon, the 
Court has increasingly gravitated toward his intent-based test in the years since 
that case was decided. 136 Just a month after Cannon, the Court in Touche Ross 
& Co. v. Redington 137 refused to imply a private right of action in a securities 
case, stating that "our task is limited solely to determining whether Congress 
intended to create the private right of action asserted." 138 The Court similarly 
relied on the absence of congressional intent to create a right of action in 
subsequent cases seeking damages for statutes prohibiting fraudulent investment 
practices 139 and a right to contribution from other participants in an unlawful 
conspiracy. 140 A majority of the Court backed off a bit from its insistence on 
evidence of congressional intent in Thompson v. Thompson. 141 While denying 
a private right of action to seek an injunction against a Louisiana custody decree 
under the Parental Kidnapping and Prevention Act of 1980, the Court 
emphasized that affirmative evidence of congressional intent was not necessarily 
required. 142 Some other decisions in the post-Cannon period have recognized a 
private right of action, particularly for statutes passed during the period in which 
they were routinely implied. 143 Still, the Court has moved much closer to Justice 



134. Id. at 731. 

135. Id. 

136. Mazzuchi, supra note 125, at 1076, 1078. 

137. 442 U.S. 560(1979). 

138. Mat 568. 

139. Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11 (1979). 

140. Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981). 

141. 484 U.S. 174(1988). 

142. Id. at 179 (clarifying that "[o]ur focus on congressional intent does not mean that we 
require evidence that Members of Congress, in enacting the statute, actually had in mind the 
creation of a private cause of action"). 

143. See Morse v. Republican Party of Va., 517 U.S. 186, 233-34 (1996) (relying on the 
contemporary legal context of the VRA to imply a right of action to enforce prohibition on poll 
taxes); Musick, Peeler & Garrett v. Emp'rs Ins. of Wausau, 508 U.S. 286, 292-93 (1993) (implying 
a right of action under Rule 10b-5, promulgated under § 10(b) of the Securities and Exchange Act 
of 1934); Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 70-71 (1992) (implying a right of 
action for damages under Title IX of the Civil Rights Act); Herman & MacLean v. Huddleston, 459 
U.S. 375, 387 (1983) (implying a right of action under Rule 10b-5, promulgated under § 10(b) of 
the Securities and Exchange Act of 1934); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 
456 U.S. 353, 387-88 (1982) (implying a right of action under the Commodity Futures Trading 



132 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



Powell's position requiring clear evidence of Congress's intent to create a private 
right of action. 

The most striking contemporary example of the Court's restrictive approach 
is Alexander v. Sandoval. 144 The plaintiff in Alexander sought to challenge the 
Alabama Department of Public Safety's English-only policy, arguing that it 
violated disparate-impact regulations promulgated by the Department of Justice 
under Title VI of the Civil Rights Act. 145 While Cannon implied a right of action 
for private individuals to sue directly under Title VI, the statute itself only covers 
intentional discrimination. 146 To make a disparate-impact claim, then, it was 
necessary to imply a right of action in plaintiffs favor under Title VI regulations. 
Justice Scalia's opinion for the Court rejected such a private right of action, 
reasoning that "private rights of action to enforce federal law must be created by 
Congress," 147 and that Congress had created no such right. 

In ascertaining whether a right of action was created, the Alexander 
majority — consistent with Justice Scalia's textualist approach — looked to the 
language of the statute: "The judicial task is to interpret the statute Congress has 
passed to determine whether it displays an intent to create not just a private right 
but also a private remedy." 148 In this respect, the majority opinion did not simply 
embrace Justice Powell's view from his dissent in Cannon that there must be 
"compelling evidence" 149 of congressional intent to create a right of action, but 
goes further. It suggested that this evidence must come from the statute itself. 
The Alexander opinion thus represents the clearest break from the Borak view 
that a right of action should generally be inferred when plaintiff is of the class the 
statute was designed to benefit. Justice Scalia's opinion for the Court makes this 
point explicitly by labeling the plaintiffs contrary argument as an attempt to 
"revert ... to the understanding of private causes of action that held sway 40 
years ago." 150 In characteristically colorful fashion, Justice Scalia declined the 
invitation: "Having sworn off the habit of venturing beyond Congress's intent, 
we will not accept respondents' invitation to have one last drink." 151 Looking to 
the statutory text, the majority found neither "rights-creating" language nor the 
"intent to create a private remedy." 152 The Court also rejected the argument that 
language in the regulations is relevant to the question. The sole issue, instead, 
was whether the statute evinces congressional intent to create a private right and 



Commission Act). 

144. 532 U.S. 275(2001). 

145. Mat 279. 

146. Id. at 280-81; Guardians Ass'n v. Civil Serv. Comm'n of New York City, 463 U.S. 582 
(1983); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). 

147. Alexander, 532 U.S. at 286. 

148. Id. (citing Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11,15 (1979)). 

149. Cannon v. Univ. of Chi., 441 U.S. 677, 730 (1979) (Powell, J., dissenting). 

150. Alexander, 532 U.S. at 287. 

151. Id. 

152. Mat 288-89. 



2010] FEDERAL ELECTION LAWS ENFORCEMENT 133 



remedy. 153 

As Alexander exemplifies, the Court has moved toward a much more 
restrictive view of implied rights of action. In the decade or so following Borak, 
the Court was quite generous in implying rights of action, especially where a 
plaintiff alleged a collective harm and was among the class experiencing that 
harm. Prime examples were the minority voters in Allen who claimed that injury 
to their collective interest in fair representation by virtue of vote dilutive election 
practices. 154 Since 1975, the focus has increasingly narrowed to whether the 
statutory text shows a congressional intent to create both an individual right and 
a private remedy. 

B. Rights of Action Under § 1983 

For plaintiffs seeking to sue state or local officials for violations of federal 
statute, there is an alternative route for asserting a private right of action. Section 
1983 confers a right of action on litigants whose rights under federal laws have 
been violated by a person acting "under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory" 155 — that is, under color 
of state law. As with implied rights of action, the Supreme Court has made it 
increasingly difficult for private litigants to bring suit under § 1983 for federal 
statutory violations. Although the two tests are not identical, plaintiffs now must 
show that Congress intended to confer an individual right (though not necessarily 
a remedy) in order to sue under § 1983. In addition, the Court will sometimes 
infer that Congress intended to preclude a § 1983 right of action, where the 
statute contains an alternative remedial scheme. 

The seminal case for private plaintiffs suing under § 1983 for statutory 
violations is Maine v. Thiboutot} 56 Plaintiffs in Thiboutot alleged that the State 
of Maine and its officials had violated a provision of the Social Security Act by 
denying them welfare benefits to which they were entitled. 157 Because the 
relevant provision of the Social Security Act contained no private right of action, 
plaintiffs sought to make their claim under § 1983, citing the statute's language 
allowing claims for violations of the "Constitution and laws" 15 * The Court 
rejected the state's argument that § 1983 only provided a right of action for 



153. For a similar view, see Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 
552 U.S. 148, 164 (2008) ("[I]t is settled that there is an implied cause of action only if the 
underlying statute can be interpreted to disclose the intent to create one. . . ."). 

154. Allen v. State Bd. of Elections, 393 U.S. 544, 549 (1969). 

155. 42U.S.C. § 1983(2006). 

156. 448 U.S. 1 (1980); see also Key, supra note 92, at 320 (noting that Maine v. Thiboutot 
was the first case to confront the meaning of § 1983's "and laws" language). 

157. Thiboutot, 448 U.S. at 2-3. 

158. 42 U.S.C. § 1983 (emphasis added). Section 1983 was originally part of the Civil Rights 
Act of 1 87 1 . The phrase "and laws" was added in 1 874 without any legislative history to explain 
the reason for the change. Mank, supra note 102, at 1427. For a discussion of the origins of § 
1983, see Sunstein, supra note 87, at 398-409. 



1 34 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



violation of statutes protecting equal rights. 159 Justice Brennan's opinion for the 
majority instead relied on the plain meaning of the term "and laws," as used in 
§ 1983, concluding that it "means what it says" and was not limited to civil 
rights statutes. 160 As in Cannon, decided the previous term, Justice Powell 
dissented. 161 Relying on the legislative history of § 1983, he concluded that it 
provided a right of action only for federal statutes protecting equality of rights. 162 
He also raised practical concerns about the majority's ruling, including the 
danger of litigation that would "harass state and local officials" and overly 
burden the courts. 163 

Although the Court has never adopted Justice Powell's position that § 1983 
is limited to statutes protecting equal rights, it has imposed two major limitations 
on the availability of a § 1983 right of action to redress violations of federal 
statutes. 164 The first is that a § 1983 right of action is not available where it is 
precluded — expressly or implicitly — by the statutory scheme that the private 
plaintiff seeks to enforce. This limitation stems from Middlesex County 
Sewerage A uthority v. National Sea Clammers Ass 'n, in which the Court rej ected 
a § 1 983 claim brought by commercial fishermen seeking to enforce federal laws 
restricting water pollution. 165 It held that the "comprehensive enforcement 
mechanisms" in these statutes demonstrated Congress's intent to preclude a § 
1983 right of action. 166 Specifically, the environmental statutes in question 
allowed for citizen suits, administrative remedies, and federal agency 
enforcement. The Court concluded that these "unusually elaborate enforcement 
provisions" demonstrated congressional intent to supplant a § 1983 remedy. 167 
On the other hand, in Wright v. City of Roanoke Redevelopment and Housing 
Authority?* 3 * the Court rejected the argument that relief under a federal housing 
law was impliedly precluded by an administrative enforcement scheme. 169 
Although the U.S. Department of Housing and Urban Development had some 
authority to enforce the statute, the remedies expressly provided were not 
"sufficiently comprehensive and effective to raise a clear inference that Congress 
intended to foreclose a § 1983 cause of action." 170 



159. Thiboutot, 448 U.S. at 5. 

160. Id. at 4. 

161. Id. at 1 1 (Powell, J., dissenting). 

162. Id. at 16. 

163. Mat 23. 

1 64. See Erwin Chemerinsky, Federal Jurisdiction 562-70 (5th ed. 2007). 

165. Middlesex Cnty. Sewerage Auth.v.Nat'l Sea Clammers Ass'n, 453 U.S. 1, 17-18(1981). 

166. Id. at 20. 

167. Id. at 13, 21 \ see also Smith v. Robinson, 468 U.S. 992, 1003-04 (1984) (finding implied 
preclusion of a § 1983 claim under the Education of the Handicapped Act). 

168. 479 U.S. 418(1987). 

169. Id. at 424. 

170. Id. at 425; see also Blessing v. Freestone, 520 U.S. 329, 348 (1997) (rejecting an 
argument that an administrative scheme foreclosed § 1 983 relief where there was no private judicial 
or administrative remedy). 



2010] FEDERAL ELECTION LAWS ENFORCEMENT 135 



Wright says that congressional intent to preclude must be clear — the reverse 
of the presumption that now exists for implied rights of action — for a § 1983 
claim to be foreclosed by an alternative enforcement scheme. 171 More recently, 
however, the Court has held that preclusion will be presumed where the statute 
includes its own private remedy. In City ofRancho Palos Verdes v. Abrams, 112 
an amateur radio operator sought to sue the municipality in which he lived under 
§ 1983, claiming that it had violated various provisions of the 
Telecommunications Act of 1996. 173 Justice Scalia's opinion for the Court 
rejected plaintiffs § 1983 claim, reasoning that a statute's "provision of an 
express, private means of redress in the statute itself is ordinarily an indication 
that Congress did not intend to leave open a more expansive remedy under § 
1983." 174 This suggests that a statute's inclusion of private remedy will 
ordinarily be presumed to foreclose a § 1983 claim. Because the 
Telecommunications Act provided remedies to private parties, and because 
plaintiff failed to counter the presumption against a § 1983 claim, the Court 
concluded that this claim was impliedly precluded. 175 By contrast, an 
administrative procedure providing only for the withdrawal of federal 
funding — and not for a private remedy — is insufficient to preclude a § 1983 
claim. 176 

The other major limitation on using § 1983 to enforce a federal statute is the 
requirement that the statute confer rights. This requirement is drawn from the 
language of § 1983 itself, which states that plaintiffs deprived of "rights, 
privileges, or immunities" secured by federal law may obtain redress. 177 Over 
time, this requirement too has become more stringent, with the current Court 
requiring an unambiguous conferral of an individual right to make a § 1 983 claim 
under a federal statute. The Court first carved out this limitation in Pennhurst 
State School and Hospital v. Halderman, xn decided just one year after 
Thiboudot. Justice Rehnquist's opinion for the Court concluded that the statute 
in question, the Developmentally Disabled Assistance and Bill of Rights Act of 
1975, declared policy but did not create substantive rights. 179 In Golden State 
Transit Corp. v. City of Los Angeles, the Court held that a private plaintiff may 
sue under § 1983 if a three-part test is satisfied: (1) the federal statute creates a 
binding obligation; (2) the interest is sufficiently specific as to be judicially 



171. Wright, 479 U.S. at 425. 

172. 544 U.S. 113(2005). 

173. Id. at 116-18. 

174. Mat 121. 

175. Id. at 122. 

176. Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788, 795-96 (2009). 

177. 42U.S.C. § 1983(2006). 

178. 451 U.S. 1 (1981). 

179. Id. at 22. The Pennhurst Court relied in part on the fact that the federal statute in 
question was enacted pursuant to Congress's spending power, and that the remedy for failure to 
comply with such statutes is usually termination of funds. Id. at 28. 



136 INDIANA LAW REVIEW [Vol. 44: 1 13 



enforceable; and (3) the statute is designed to benefit the plaintiff. 180 Subsequent 
cases, however, have tightened this test by clarifying that the federal statute must 
do more than impose a duty on state or local officials. 181 There must instead be 
an intent to confer a specific right on individuals. 182 

The Court's most emphatic insistence that federal law must confer an 
individual right appears in Gonzaga University v. Doe. m The plaintiff was a 
former student at Gonzaga University who alleged that the school had released 
information in violation of the Family Educational Rights and Privacy Act 
(FERPA). 184 In rejecting his claim, the Court reviewed its prior cases holding 
that laws imposing a specific, binding obligation on states were sufficient to 
allow § 1983 relief. 185 While acknowledging that some language in these cases 
suggested a more generous standard, the Gonzaga majority expressly "rejected] 
the notion that . . . anything short of an unmbiguously conferred right" suffices 
to support a § 1983 right of action. 186 The Court also clarified that only an 
"individual right" will suffice. 187 Once plaintiff establishes that the statute 
unambiguously confers an individual right, the burden shifts to the state or local 
defendant to show that Congress intended to foreclose a § 1983 remedy. 188 In 
this respect, the inquiry differs from that which now applies to implied rights of 
action, under which plaintiff has the burden of demonstrating congressional 
intent to create both a private right and a private remedy. 189 But the first part of 
the inquiry — whether Congress intended to create an individual right — is now the 
same for both implied and § 1983 rights of action. 190 Because FERPA' s 



180. Golden State Transit Corp. v. City of L.A., 493 U.S. 103, 106 (1989); see also Wilder 
v. Va. Hosp. Ass'n, 496 U.S. 498, 510-11 (1990) (finding a § 1983 right of action where a statute 
created a "binding obligation"); Mazzuchi, supra note 125, at 1095-96 (understanding Wilder to 
mean that § 1 983 creates a presumption of private enforceability where a right exists under the Cort 
test). 

181. See Key, supra note 92, at 346-52 (describing and criticizing the Court's approach to 
rights of action under § 1983 for federal statutory violations). 

182. See, e.g., Blessing v. Freestone, 520 U.S. 329, 344-45 (1997) (rejecting a § 1983 claim 
for violation of provisions of Title IV-D of the Social Security Act requiring states to provide child 
support services on the ground that they did not "give rise to individualized rights"); Suter v. Artist 
M., 503 U.S. 347, 363 (1992) (rejecting § 1983 claim for alleged violation of Adoption Assistance 
and Child Welfare Act of 1980, which imposed a "generalized duty on the State," but did not 
"unambiguously confer an enforceable right upon the Act's beneficiaries"). 

183. 536 U.S. 273 (2002). 

184. Id. at 277. 

185. Mat 279-82. 

186. Id. at 283. 

187. Id. at 284. 

188. Id. at 284, 284 n.4. 

189. Mat 284. 

190. Id. at 285 ("A court's role in discerning whether personal rights exist in the § 1983 
context should therefore not differ from its role in discerning whether personal rights exist in the 
implied rights of action context. . . . Both inquiries simply require a determination as to whether 



2010] FEDERAL ELECTION LAWS ENFORCEMENT 137 



nondisclosure provisions lacked clear and unambiguous "rights-creating" 
language, the Court found there to be no § 1983 right of action to enforce 
them. 191 

Gonzaga thus imposed the most restrictive test to date on plaintiffs seeking 
relief under § 1983 for violations of a federal statute. There may be some basis 
for limiting its impact in the future, given that the majority spends much of its 
opinion emphasizing that FERPA and other statutes considered in earlier § 1983 
cases were enacted pursuant to Congress's Spending Clause authority. 192 Where 
Congress acts pursuant to this power, the "typical remedy" for a violation is 
termination of federal funds. 193 If Gonzaga 's demanding test were limited to 
statutes enacted under Congress's spending power, then its rationale resembles 
the preclusion reasoning articulated in cases like Sea Clammers 194 andAbrams. 195 
On this theory, the restrictive test for finding a § 1983 right of action is 
predicated on the availability of an alternative remedy — namely, cutting off 
federal funds — that is presumed to preclude a private claim. 

The problem with this argument is that Gonzaga' s language requiring an 
"unambiguously conferred right" is not expressly limited to Spending Clause 
cases. This suggests that the Court intended that the same restrictive test for a 
§ 1983 right of action apply, regardless of the subject matter of the dispute and 
the source of constitutional authority for the statute in question. 196 So 
interpreted, Gonzaga represents a major impediment to private plaintiffs seeking 
redress for federal statutory violations committed by state or local 
actors — including actions under federal election statutes. Like all the previous 
§ 1983 right-of-action cases decided by the Supreme Court, Gonzaga did not 
involve an election dispute. Its language is nevertheless broad enough to 
encompass such disputes. 

III. Private Enforcement of Federal Election Statutes 

The Court's restrictive doctrine on private rights of action has mostly 
developed outside the context of elections. In fact, prior to Brunner v. Ohio 



or not Congress intended to confer individual rights upon a class of beneficiaries."); see also Mank, 
supra note 102, at 1448 ("Chief Justice Rehnquist significantly changed the test [in Gonzaga] . . 
. by emphasizing that the same issue of congressional intent controls as in implied right of action 
cases."). 

191. Gonzaga, 536 U.S. at 287. In dissent, Justice Stevens protested the majority's partial 
conflation of the tests for implied and § 1983 rights of action, on the ground that § 1983 claims do 
not implicate the same separation-of-powers concerns. Id. at 300 (Stevens, J., dissenting). 

192. Mat 278-81. 

193. Id. at 280 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981)). 

1 94. See supra notes 165-67. 

195. See supra notes 1 72-75 . 

196. See Key, supra note 92, at 324 (describing the result of the Court's jurisprudence as 
"eliminat[ion] of the practical utility of § 1983 statutory causes of action, while ostensibly still 
recognizing their existence"). 



138 INDIANA LAW REVIEW [Vol. 44: 1 13 



Republican Party, 191 none of the Court's decisions on § 1983 rights-of-action 
involved election law disputes. This is partly because some of the most 
important federal election statutes — including § 2 of the Voting Rights Act 198 and 
the National Voter Registration Act 199 — are privately enforceable. In fact, the 
prominence of these statutes is at least partly attributable to the availability of a 
private right of action to enforce them. 

It is unclear whether other election statutes are privately enforceable, and 
there have been several recent cases in which lower courts have applied the 
Court's right-of-action jurisprudence to claims that federal election statutes had 
been violated. This section canvasses lower court cases brought to remedy 
alleged violations of three statutes: (1) the voter qualification and registration 
requirements codified in 42 U.S.C. § 1971;(2)UOCAVA;and(3)HAVA. Ithen 
turn to the Brunner litigation, explaining why the underlying question was more 
complex than the Court's brief opinion might lead one to believe. This part of 
the Article is mainly focused on the application of existing private-right-of-action 
doctrine, leaving a critique of that doctrine for Part IV. 

A. Section 1971 

The federal election statute that has led to the most opinions over private 
rights of action is 42 U.S.C. § 1971. This is somewhat ironic, given the relative 
obscurity of this provision, but not entirely surprising. As described below, most 
courts to have addressed the issue have concluded that this statute is not privately 
enforceable. The statute's obscurity is partly attributable to the courts' general 
refusal to imply a private right of action. 

The voter qualification and registration requirements codified in § 1 97 1 have 
their origins in a voting rights statute enacted in 1870, one year before § 1983. 
Through § 1971, Congress exercised its power to enforce the newly enacted 
Fifteenth Amendment by prohibiting state and local entities from denying the 
vote based on race, color, or previous condition of servitude. 200 Section 1971 
was amended as part of the Civil Rights Act of 1957 to prohibit the intimidation 
and coercion of voters and to allow for enforcement by the U.S. Attorney 



197. 129 S. Ct. 5 (2008) (per curiam). 

198. 42 U.S.C. § 1973 (2006). Interestingly, § 2 does not expressly confer a right of action, 
though the Supreme Court has routinely allowed private enforcement of this provision. See, e.g., 
Johnson v. De Grandy, 512 U.S. 997 (1994); Chisom v. Roemer, 501 U.S. 380 (1991). 
Commentators have likewise stated that § 2 provides a private right of action, with little or no 
explanation of why. See Nathaniel Persily, Options and Strategies for Renewal of Section 5 of the 
Voting Rights Act, 49 How. L.J. 717, 732 (2006). In one of the few cases to address the question 
expressly, which was decided shortly after the VRA's enactment, a federal district court concluded 
that § 2 was enforceable through § 1983. Gray v. Main, 291 F. Supp. 998, 999-1000 (M.D. Ala. 
1966). 

199. 42 U.S.C. §§ 1973gg-1973gg-10. 

200. Id. § 1983. 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 39 



General. 201 Congress amended § 1971 again as part of the Civil Rights Act of 
1960, enhancing the federal courts' remedial powers in cases where a "pattern 
or practice" of violations was found to exist. 202 

The most significant amendment, for purposes of private enforceability, was 
the addition of requirements pertaining to voter qualifications and registration as 
part of the Civil Rights Act of 1964. 203 These amendments, now codified at 42 
U.S.C. § 1971(a)(2), include two key components. First, with respect to voter 
qualifications, the statute prohibited the application of a "standard, practice, or 
procedure" to some voters that was different from that applied to other voters in 
the same jurisdiction. 204 Second, the statute prohibited the denial of the right to 
vote based on an "error or omission on any record or paper relating to any 
application, registration, or other act requisite to voting," unless the error or 
omission was "material in determining whether such individual is qualified . . . 
to vote." 205 By their terms, these requirements are not limited to race 
discrimination, and some courts have held that they apply to discrimination on 
other grounds, including sex or student status. 206 

The 1957, 1960, and 1964 civil rights acts are generally viewed as having 
been ineffective in protecting voting rights, because they depended mainly on 
litigation for enforcement. Southern federal district judges were often unwilling 
to intercede, and even when they did, new disenfranchising practices were often 
adopted right after the old ones had been stopped. 207 The 1 964 amendments to 
§ 1 97 1 might well have assumed greater importance, however, had Congress not 
enacted the VRA the next year. 208 The VRA effectively overwhelmed the system 
of disenfranchisement that had kept Southern blacks from voting since the end 



201. Id. § 1971(g). 

202. Id. § 1971(e). 

203. Pub. L. 88-352, § 101, 78 Stat. 241 (1964). 

204. 42 U.S.C. § 1971(a)(2)(A). 

205. Id. § 1971(a)(2)(B). The 1964 amendment also added a prohibition on literacy tests, 
unless administered wholly in writing with the questions. Id, § 1971(a)(2)(C). This change was 
effectively supplanted by the temporary ban on literacy tests in covered jurisdictions (made 
permanent in 1975) in § 4 of the Voting Rights Act of 1965. Id. § 1973(b). Bernard Grofman 
et al., Minority Representation and the Quest for Voting Equality 21 (1992); Armand 
Derfher, Vote Dilution and the Voting Rights Act Amendments of 1982, in MINORITY VOTE 
Dilution 145, 149 (Chandler Davidson ed., 1984). 

206. See Ball v. Brown, 450 F. Supp. 4, 7-8 (N.D. Ohio. 1977) (concluding that § 1971 
reaches sex discrimination); Frazier v. Callicutt, 383 F. Supp. 15, 19-20 (N.D. Miss. 1974) 
(concluding that § 1 97 1 (a)(2)(A) reaches discrimination against students). But see Ind. Democratic 
Party v. Rokita, 458 F. Supp. 2d 775, 839-40 (S.D. Ind. 2006) (questioning plaintiffs' argument that 
§ 1971(a)(2) reaches non-racial discrimination, but then assuming that it does and rinding no 
violation), aff'don other grounds sub nom. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949 
(7th Cir. 2007), aff'd, 553 U.S. 181 (2008). 

207. Tokaji, The New Vote Denial, supra note 1 10, at 702. 

208. Pub. L. No. 89-110, 79 Stat 457 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 
1973bb-l (2006)). 



1 40 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



of Reconstruction. 209 Because the VRA was so effective in enfranchising 
Southern blacks, 210 § 1971 's requirements — and with it the question of whether 
the statute is privately enforceable — receded in significance. 211 

There have, however, been several cases in which private plaintiffs have 
sought to enforce the qualification and registration requirements of § 1971. 212 
The Supreme Court has never confronted the issue directly, although it did 
assume private enforceability in United States v. Mississippi, stating that "private 
persons might file suits under § 1971 against individual registrars who 
discriminated in applying otherwise valid laws." 213 Because that case was 
brought by the U.S. government rather than private plaintiffs, it is dictum that has 
been given scant weight by subsequent courts. 

There is a split of authority in the lower courts on the question of § 1971 's 
private enforceability, with most rejecting the argument that there is a private 
right of action. But in all of the cases rejecting a private right of action, the 
analysis is brief, conclusory, and unsatisfying. 214 Based on § 1971 's express 
provision for enforcement by the Attorney General, 2 1 5 these courts concluded that 
private enforcement is precluded. Without exception, the decisions fail to apply 
the tests established by the Supreme Court, either for an implied right of action 
or for a § 1983 right of action. 

The most thorough analysis of the issue appears in the one appellate decision 



209. Tokaji, The New Vote Denial, supra note 1 10, at 702. 

210. Id.; see also Grofman et al., supra note 205, at 23 tbl.l (showing increase in black 
registration in covered states from 29.3% to 52.1% between 1965 and 1967). 

211. The VRA included an amendment to § 1971, extending it from federal elections to all 
elections. Pub. L. No. 89-1 10, § 15, 79 Stat. 37, 445 (codified as amended at 42 U.S.C. § 1971 
(2006)). 

212. One of those cases was the challenge to Indiana' s photo identification law, which ultimately 
led to the Supreme Court's decision upholding its constitutionality. Crawford v. Marion Cnty. 
Election Bd., 472 F.3d 949 (7th Cir. 2007), aff'd, 553 U.S. 1 8 1 (2008). The district court in that case 
rejected plaintiffs' § 1 97 1 claim on the merits without deciding whether there was a private right of 
action to enforce the statute. Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 842 n. 1 12 (S.D. 
Ind. 2006), aff'don other grounds sub nom. Crawford v. Marion Cnty. Election Bd., 472 F.3d 949 
(7th Cir. 2007), aff'd, 553 U.S. 181 (2008), and neither the Seventh Circuit nor the Supreme Court 
addressed § 1971. Crawford, 472 F.3d 949 (7th Cir. 2007), aff'd, 553 U.S. 181 (2008). 

213. 380 U.S. 128, 137(1965). 

214. See, e.g. , McKay v. Thompson, 226 F.3d 752, 756 (6th Cir. 2000); Gilmore v. Amityville 
Union Free Sch. Dist., 305 F. Supp. 2d 271, 279 (E.D.N. Y. 2004); Spivey v. Ohio, 999 F. Supp. 
987, 996 (N.D. Ohio 1998), aff'd sub nom. Mixon v. Ohio, 193 F.3d 389, 406 n.12 (6th Cir. 1999); 
McKay v. Altobello, No. 96-3458, 1 996 WL 635987, at *2 (E.D. La. Oct. 31,1 996); Cartagena v. 
Crew, No. CV-96-3399, 1996 WL 524394, at *3 n.8 (E.D.N. Y. Sept. 5, 1996); Willing v. Lake 
Orion Cmty. Sch. Bd. of Trs., 924 F. Supp. 2d 815, 820 (E.D. Mich. 1996); Good v. Roy, 459 F. 
Supp. 403, 405 (D. Kan. 1978); see also Broyles v. Texas, 618 F. Supp. 2d 661, 697 n.l 1 (S.D. 
Tex. 2009) (citing cases that have found no private right of action to enforce § 197, but disposing 
of case on other grounds), aff'd, No. 09-20290, 2010 WL 2465093 (5th Cir. June 1 1, 2010). 

215. 42 U.S.C. § 1971(c) (2006). 



2010] FEDERAL ELECTION LAWS ENFORCEMENT 141 



expressly holding that there is a private right of action to enforce § 1971. In 
Schwier v. Cox, 216 the Eleventh Circuit considered a challenge to Georgia's law 
requiring that voters furnish their Social Security numbers. 217 The court 
canvassed the history of § 1971, noting that the provisions for Attorney General 
enforcement were not added until 1957, thus suggesting that — at least from the 
enactment of § 1983 in 1871 until 1957 — § 1971 was enforceable by private 
plaintiffs. 218 The court also relied in part on Supreme Court precedent holding 
that portions of the VRA are privately enforceable, despite the fact that they may 
also be enforced by the Attorney General. 219 In other words, the express 
provision for enforcement by the federal government does not necessarily 
preclude private enforcement. The Eleventh Circuit then turned to the test for 
whether there is a private right of action under § 1983, finding that § 1971 
includes precisely the sort of clear, rights-creating language that the Gonzaga 
Court demanded. 220 Accordingly, the Schwier court found the requirements of 
§ 1971 to be privately enforceable. 221 

Despite the fact that most other courts have disagreed, the Eleventh Circuit's 
conclusion that § 1971 is privately enforceable is correct, even under the 
stringent test that the Gonzaga Court set forth for private rights of action under 
§ 1983. The lower courts that have reached the opposite conclusion have simply 
failed to apply the Court's test. 

There is an additional factor, not mentioned in Schwier or formally part of 
the doctrine, that provides further support for the conclusion that § 1971 should 
be privately enforceable: the lack of any administrative agency able to provide 
guidance on the statute's meaning. 222 Although § 1971 has been around for quite 



216. 340 F.3d 1284 (1 1th Cir. 2003). There are also some district court decisions finding a 
private right of action to enforce § 1971. See, e.g., Ball v. Brown, 450 F. Supp. 4, 7-8 (N.D. Ohio 
1977); Brooks v.Nacrelli, 331 F. Supp. 1350, 1351-52 (E.D. Pa. 1971). There are also other cases 
in which the courts have reached the merits of private plaintiffs' § 1971 claims without expressly 
addressing the issue of whether there is a private right of action. See, e.g., Ballas v. Symm, 494 
F.2d 1167, 1171-72 (5th Cir. 1974); Frazier v. Callicutt, 383 F. Supp. 15, 19-20 (N.D. Miss. 1974); 
Brier v. Luger, 351 F. Supp. 313, 316 (M.D. Pa. 1972); Brown v. Post, 279 F. Supp. 60, 63-64 
(W.D. La. 1968). 

217. Schwier, 340 F.3d at 1293-94. 

218. Id at 1295-97. 

219. Id at 1294-96. 

220. Id at 1296 (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002)). 

221. Mat 1297. 

222. It might be argued that the Civil Rights Act of 1 964, which added the qualification and 
registration provisions codified at § 1971(a)(2), conferred this authority on the U.S. Commission 
on Civil Rights (USCCR). 42 U.S.C. § 1971(a)(2) (2006). Specifically, § 507 of the 1964 Act 
gave the USCCR broad power to make such rules and regulations as are necessary to carry out the 
purposes of the Act. Pub. L. No. 88-352, § 507, 78 Stat. 241, 252 (1964). The United States 
Commission on Civil Rights Act of 1 983, which made the USCCR an independent agency, included 
the same language — although the reference to "this Act" is best understood as referring only to the 
1983 Act (rather than to § 1971(a)(2) or other provisions added by the Civil Rights Act of 1964). 



1 42 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



a while, there is relatively little precedent on precisely what practices are barred 
by its provisions, particularly the qualification and registration provisions of § 
1971 (a)(2). Without any agency empowered to issue regulations that would 
clarify the scope of § 1971, the courts are the only entity in a position to provide 
authoritative guidance. But without a private right of action, the only way of 
getting disputes into court would be for the Attorney General to bring suit. Even 
putting aside the dangers of giving exclusive enforcement authority to the 
Department of Justice (a concern to which I will return in Part IV), 223 the lack of 
a private right of action would limit — and no doubt has limited — the ability of 
courts to clarify the meaning of § 1971. Although this is not something that the 
Supreme Court has recognized to be relevant in assessing whether there is an 
implied or § 1983 right of action, the ability of courts to clarify the law would be 
a significant benefit of private enforceability. For without a private right of 
action, the only cases that can be heard in a federal court are the ones that the 
U.S. government brings. If the Department of Justice declines to bring litigation 
under § 1971 (or, for that matter, any other federal election statute), then its 
meaning will remain indeterminate for both the voters it protects and the election 
officials who are required to follow it. 

B. UOCAVA 

Another election statute that lacks an express private right of action is the 
Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). 224 This 
statute has generated even less litigation than § 1971, and so far, no decisions 
have expressly held whether there is an implied or § 1983 right of action to 
enforce the statute. 225 

UOCAVA has its origins in the Federal Voting Assistance Act of 1955, 226 
which was designed to allow members of the armed services and their families 
to vote absentee when stationed overseas, 227 and the Overseas Citizens Voting 
Rights Act of 1975, 228 which extended absentee voting to other citizens residing 



42 U.S.C. § 1975b(d). In any event, the USCCR functions as an investigatory rather than 
regulatory agency. See Peter P. Swire, Note, Incorporation of Independent Agencies into the 
Executive Branch, 94 Yale L.J. 1766, 1782 (1985) (characterizing USCCR as a "purely 
investigatory agency"). Throughout its history, the USCCR has apparently understood its 
rulemaking authority as limited to its internal operations, and not to include the interpretation of 
substantive provisions of civil rights law such as § 1971. 

223. See infra Part IV. 

224. 42 U.S.C. §§ 1973ff-1973ff-6 (2006). 

225. For a summary of litigation involving UOCAVA, see Deborah Buckman, Validity, 
Construction, and Application of Uniformed and Overseas Citizens Absentee Voting Act 
(UOCAVA), 42 U.S.C.A. §§ 1973ffet seq., 1 A.L.R. FED. 2d 251 (2005). 

226. 42U.S.C.§§ 1973cc-1973cc-3, repeated fey UOCAVA, Pub. L. No. 99-410, §203, 100 
Stat. 924. 

227. Id. 

228. 42 U.S.C. §§ 1973dd-1973dd-5, repealed by UOCAVA, Pub. L. No. 99-410, § 203, 100 



2010] FEDERAL ELECTION LAWS ENFORCEMENT 143 



outside the United States. 229 In 1986, Congress repealed these statutes and 
enacted UOCAVA in their place, out of a recognition that overseas voters still 
faced serious obstacles to voting absentee and having their votes counted. 230 
Broadly speaking, UOCAVA requires states to allow uniformed and overseas 
voters to use absentee voter procedures. 231 UOCAVA also prescribes a process 
by which voters who request but do not receive their absentee ballots in time may 
cast a federal write-in ballot, 232 and it includes a number of "recommended" steps 
that states can take to facilitate voting by uniformed and overseas voters. 233 This 
leaves many of the details to be worked out by individual states. 234 The U.S. 
Attorney General has the power to enforce UOCAVA through actions for 
declaratory or injunctive relief, but the act is silent on private enforceability. 235 
The Department of Justice's website reports there were thirty-five lawsuits to 
enforce UOCAVA between 1986 and 2009. 236 

In 2009, Congress strengthened UOCAVA through the Military and Overseas 
Voter Empowerment (MOVE) Act. 237 Finding that military and overseas voters 
still faced a "complicated and convoluted system," 238 the MOVE Act imposed 
more specific requirements on the states. Among these requirements are: (1) to 
allow the electronic transmission of registration materials, ballot requests, and 
blank ballots, (2) to give covered voters forty-five days to complete and return 
their absentee ballots, (3) to create a system for determining whether voters' 
ballots have been received, (4) to ensure the privacy of military and overseas 
voters, and (5) to prohibit states from rejecting registration or ballot requests for 
lack of notarization or other formalities. 239 It also gives a presidential designee 
(now the Secretary of Defense) various responsibilities, such as the establishment 
of procedures for delivery of ballots and an outreach program for voters covered 
by the Act. 240 



Stat. 924. 

229. Id. 

230. H.R. Rep. No. 99-765, at 10 (1986), reprinted in 1986 U.S.C.C.A.N. 2009, 2014. 

231. 42 U.S.C. § 1973ff-l (2006). 

232. Id. § 1973ff-2. 

233. Id. § 1974ff-3. 

234. See Bush v. Hillsborough Cnty. Canvassing Bd., 123 F. Supp. 2d 1305, 1314 (N.D. Fla. 
2000). 

235. 42 U.S.C. § 1973ff-4. 

236. Voting Section Litigation, U.S. Dep't OF Justice, http://www.justice.gov/crt/voting/ 
litigation/caselist.php#uocava_cases (last visited Sept. 29, 2010). 

237. Military and Overseas Voter Empowerment Act, Pub. L. No. 1 1 1 -84, § 574-89, 1 23 Stat. 
2190 (codified at 42 U.S.C. §§ 19731T to 1973ff-2 (2006)). 

238. 155 CONG. Rec. SI 0682 (daily ed. Oct. 22, 2009) (statement of Sen. Charles Schumer). 

239. 42 U.S.C. § 1973ff-l(a). 

240. Id. § 1973ff-2A. The Secretary of Defense has delegated its responsibilities under 
UOCAVA, as amended by MOVE, to the Federal Voting Assistance Program. Federal Voting 
Assistance Program, http://www.fvap.gov/ (last updated Sept. 24, 2010); The Uniformed and 
Overseas Citizens Absentee Voting Act, U.S. Dep't OF JUSTICE, http://www.justice. 



144 INDIANA LAW REVIEW [Vol. 44: 1 13 



There are very few reported decisions involving UOCAVA, 241 although that 
may change with the imposition of new responsibilities on the states through the 
MOVE Act. Of those decisions, none expressly addressed whether UOCAVA 
is privately enforceable. One of the most prominent UOCAVA cases was 
brought by George W. Bush, Dick Cheney, and the Florida Republican Party 
during the dispute over the outcome of Florida's 2000 presidential contest. In 
Bush v. Hillsborough County Canvassing Board, 242 the plaintiffs challenged 
various Florida counties' refusal to accept ballots from overseas and military 
voters that were unpostmarked, had illegible postmarks, or were postmarked after 
election day. 243 Without addressing whether the private plaintiffs were entitled 
to enforce UOCAVA, the court found that some of the counties' practices 
violated the MOVE Act and granted declaratory relief. 244 The failure to discuss 
the private right of action issue is surprising, given that candidates Bush and 
Cheney were plaintiffs in the case. 245 While individual voters who are denied 
relief might well meet the standard for implied or § 1983 rights of action, 246 it is 
difficult to imagine how a candidate could do so. Perhaps the inclusion of the 
Florida Republican Party — which undoubtedly included members whose rights 
under UOCAVA were allegedly violated — made it unnecessary, in the view of 
the court and the litigants, to consider whether candidates Bush and Cheney had 
aright of action. 247 

The question whether there is a private right of action to enforce UOCAVA 
did arise in United States v. Cunningham, a case challenging Virginia officials' 
alleged failure to comply with the statute, brought the day before the 2008 



gov/crt/voting/misc/activ_uoc.php (last visited Sept. 29, 2010). 

24 1 . For a description of those few cases, see Buckman, supra note 225 . A few of those cases 
involve challenges to UOCAVA's constitutionality — all of them unsuccessful. See, e.g., Romeu 
v. Cohen, 265 F.3d 1 18 (2d Cir. 2001); Igartua de la Rosa v. United States, 107 F. Supp. 2d 140 
(D.P.R. 2000); Howard v. State Admin. Bd. of Election Laws, 976 F. Supp. 350 (D. Md. 1996), 
affd, 122 F.3d 1061 (4th Cir. 1997). Others involve cases in which compliance with UOCAVA 
was asserted as a defense to a claim under another law. See, e.g., Casarez v. Val Verde Cnty., 957 
F. Supp. 847 (W.D. Tex. 1997); N.J. Democratic Party, Inc. v. Samson, 814 A.2d 1028 (N.J. 2002). 

242. 123 F. Supp. 2d 1305 (N.D. Fla. 2000). 

243. Mat 1306. 

244. Mat 1317. 

245. Id. at 1306. 

246. My research has located only one other decision, an unreported one, in which voters were 
allowed to assert claims under UOCAVA. See Reitz v. Rendell, No. 104-CV-2360, 2004 WL 
2451454 (M.D. Pa. Oct. 29, 2004). As in Hillsborough County, there was no discussion of the 
private right of action issue. Id. 

247. There is also a question of whether plaintiffs in this case had standing. For a discussion 
of a similar question in the Bush v. Gore litigation, see Erwin Chemerinsky, Bush v. Gore Was Not 
Justiciable,76NOTREDAMEL.REV. 1093, 1097-1 102 (2001) (arguing that Bush lacked standing). 
But see Daniel P. Tokaji, First Amendment Equal Protection: On Discretion, Inequality, and 
Participation, 1 1 MICH. L. REV. 2409, 249 1 -92 (2003) (suggesting a rationale for the assumption 
that Bush had standing to raise the claims of voters). 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 45 



presidential election. 248 As originally filed, the only plaintiff was the campaign 
committee for the Republican presidential ticket. 249 For the same reason that 
Bush and Cheney lacked a right of action in 2000, it is highly questionable that 
the McCain-Palin campaign had a private right of action to enforce 
UOCAVA — even assuming that a right of action would lie on behalf of voters 
whose rights were denied by Virginia's failure to comply with the statute. In 
their motion to dismiss, defendants argued that UOCAVA did not create 
privately enforceable rights and that the express provision for Attorney General 
enforcement should be understood to preclude private enforcement. 250 Before 
that motion was adjudicated, the United States government intervened in the case 
on the side of plaintiff. The district court subsequently granted the United States' 
motion to intervene and dismissed the McCain-Palin campaign as a plaintiff 
without expressly stating its reasons. 251 

A close look at UOCAVA reveals that the question of the statute's private 
enforceability is a murky one. Contrary to the argument made by the state 
defendants in Cunningham, the fact that the statute expressly provides for 
Attorney General enforcement does not necessarily foreclose a private right of 
action. Although lower federal courts have accepted a similar argument in 
denying a right of action under § 1971, that is flatly inconsistent with the 
Supreme Court's tests for rights of action. Nor do the implementation 
responsibilities given to the Secretary of Defense under UOCAVA, as amended 
by MOVE, amount to a comprehensive enforcement scheme sufficient to 
preclude private enforcement. That said, the current doctrine probably would not 
permit implication of a right of action directly under UOCAVA, as there appears 
to be no evidence that Congress — either in 1986 or when it amended the statute 
in 2009 — intended any of its requirements to be privately enforceable. 

There is a much stronger argument that certain provisions of UOCAVA are 
privately enforceable under § 1983, although the matter is hardly free from 
doubt. Recall that, under the line of cases culminating with Gonzaga, private 
plaintiffs must show that Congress intended to create an individual right (though 
not necessarily a private remedy) in order to sue under § 1983 for violation of a 
federal statute. Several provisions of UOCAVA are best understood as 



248. United States v. Cunningham, No. 3:08CV709, 2009 WL 335028, at *1 (E.D. Va. Oct. 
15, 2009). The case was originally filed as McCain-Palin 2008, Inc. v. Cunningham, but changed 
to United States v. Cunningham, after the United States intervened as a plaintiff. See infra notes 
249-51. 

249. Complaint, McCain-Palin 2008, Inc. v. Cunningham, No. 3:08CV709 (E.D. Va. Nov. 3, 
2008), available at http://moritzlawosu.edu/electionlaw/litigation/documents/McCain-Complaint- 
ll-3-08.pdf. 

250. Memorandum in Support of Motion to Dismiss, McCain-Palin 2008, Inc. v. Cunningham, 
No. 3:08CV709 (E.D. Va. Nov. 6, 2008), available at http://moritzlaw.osu.edu/electionlaw/ 
litigation/documents/McCain-Memo 1-11 -6-08.pdf. 

251. Order at 1-2, McCain-Palin, 2008, Inc. v. Cunningham, No. 3:08cv709 (E.D. Va. Nov. 
17, 2008), available at http://moritzlaw.osu.edu/electionlaw/litigation/documents/McCain-order- 
ll-17-08.pdf. 



146 INDIANA LAW REVIEW [Vol. 44: 1 13 

conferring an individual right against state officials. Among them are the 
requirements that states: 

• "permit absent uniformed services voters and overseas voters to use 
absentee registration procedures and to vote by absentee ballot" in 
federal elections, 252 

• "accept and process . . . any otherwise valid voter registration 
application and absentee ballot application from an absent 
uniformed services voter or overseas voter" if received not less than 
thirty days before a federal election, 253 

• "permit absent uniformed services voters and overseas voters to use 
Federal write-in absentee ballots" in federal elections, 

• "transmit a validly requested absentee ballot to an absent uniformed 
services voter or overseas voter . . . not later than 45 days before the 
election," so long as the request is received before then, 254 and 

• establish procedures that "shall ensure that the privacy of the 
identity and other personal data" of uniformed and overseas voters 
is protected. 255 

The conclusion that these and similarly worded provisions of UOCAVA are 
privately enforceable is strengthened by language in the statute confirming that 
Congress thought it was conferring rights on uniformed and overseas voters: 
"The exercise of any right under this subchapter shall not affect, for purposes of 
any Federal, State, or local tax, the residence or domicile of a person exercising 
such right." 256 This makes it quite clear and unambiguous that at least some 
provisions of UOCAVA confer rights. Under Gonzaga, the existence of rights- 
creating language creates a presumption of § 1983 enforceability and, given the 
absence of a "comprehensive enforcement scheme that is incompatible with 
individual enforcement," 257 it is unlikely that the state can rebut that presumption. 
On the other hand, other provisions of UOCAVA appear to lack the sort of 
rights-creating language that Gonzaga demands. For example, UOCAVA' s 
requirements that states "establish procedures" for transmitting absentee 
ballots 258 and report data on ballots transmitted 259 do not appear to confer a right 
upon any individual — much less do so "unambiguous [ly]" as Gonzaga' 's test 
demands — even though these requirements are undoubtedly designed to benefit 
uniformed and overseas voters. 



252. 42 U.S.C. § 1973ff- 1(a)(1) (2006). 

253. Id. § 1973ff- 1(a)(2). 

254. Id. § 1973ff-l(a)(8). 

255. Id. § 1973ff-l(e)(6)(B). 

256. Id. § 1973ff-5 (emphasis added). 

257. Blessing v. Freestone, 520 U.S. 329, 341 (1997). 

258. 42 U.S.C. § 1973ff- 1(a)(7). 

259. Id. § 1973ff-l(a)(ll). 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 47 



C. HAVA 

The most prominent area of election law in which the private-right-of-action 
question has arisen is the enforcement of HAVA. Passed in the wake of the 2000 
election meltdown, HAVA imposes modest but important requirements on 
states. 260 As a general matter, HAVA's requirements attempt to promote the 
sometimes competing goals of access and integrity or, as one of the bill's co- 
sponsors put it, making it both "easier to vote" and "harder to cheat." 261 These 
requirements can be broken down into four categories: 

1 . Voting Technology — HAVA did not require the replacement of the punch- 
card voting technology that proved so troublesome in 2000. In fact, it 
specifically declined to require jurisdictions to replace their existing 
equipment. 262 HAVA does, however, impose some basic requirements that all 
voting equipment must meet. Among the requirements are that voting systems 
allow voters to correct errors before casting their ballots, that equipment produce 
an auditable record, that they be accessible to people with disabilities, and that 
they provide alternate language accessibility. 263 

2. Statewide Registration Lists — Before HAVA's enactment, registration 
lists were kept at the local level (typically the county or municipal level) in most 
states. 264 HAVA changed this by requiring every state that requires voter 
registration to have "a single, uniform, official, centralized, interactive 
computerized statewide voter registration list." 265 This list, sometimes referred 
to as a "statewide registration database," must contain the name and registration 
information of every legally registered voter in the state. HAVA contains some 
specific requirements for the maintenance of these lists, including requirements 
that "duplicate names are eliminated" and that "only voters who are not 
registered or who are not eligible to vote are removed." 266 It also requires that 
state chief election officials enter into agreements with state motor vehicle 
authorities to "match" voter registration information against motor vehicle 
records, to the extent required to verify the accuracy of information on voter 
registration applications. 267 

3. Voter Identification — Among the most controversial topics to have 
emerged in the years since 2000 is whether and how voters should be required 
to prove their identity in order to have their votes counted. HAVA imposed a 
limited identification requirement, applicable only to certain voters — specifically, 



260. Id. §§ 15301-15545 (2006 & Supp. 2008). 

26 1 . David Nather, Election Overhaul May Have to Wait in Line Behind Other 'Crisis 'Issues, 
CQ WKLY., July 27, 2002, at 2034 (quoting Rep. Steny Hoyer). 

262. 42U.S.C. § 15481(c)(1). 

263. Id. §§ 15481(a)(l)-(4). 

264. Tokaji, Voter Registration and Election Reform, supra note 32, at 471 . 

265. 42U.S.C. § 15483(a)(1)(A). 

266. Id. §§ 15483(a)(2)(B)(ii)-(iii). 

267. Id. § 15483(a)(5)(B)(i). 



148 INDIANA LAW REVIEW [Vol. 44: 1 13 



to first-time voters who register by mail. 268 Those voters are required to produce 
identifying information, though it need not be in the form of photo identification 
such as a driver's license. Other acceptable forms of identification include utility 
bills, bank statements, government checks, paychecks, or government documents 
with the voter's name and address. 269 

4. Provisional Voting — Finally, HAVA requires that voters be permitted to 
cast a provisional ballot if their names do not appear on the registration list or if 
they lack required identification. 270 To cast a provisional ballot, the voter must 
affirm that he or she is "a registered voter in the" jurisdiction and "eligible to 
vote in that election." 271 The voter's ballot must then be counted, if he or she is 
determined eligible under state law. 272 HAVA also prescribes, in general terms, 
the process that election officials are supposed to follow in notifying voters that 
they may cast a provisional ballot, permitting them to cast such ballot, 
transmitting provisional ballots for verification, determining whether to count the 
ballot, and creating a procedure for notifying voters whether their ballot has been 
counted. 273 

HAVA is silent on whether any of its requirements are privately enforceable. 
If we take seriously Alexander's statement that an implied right of action requires 
evidence of a congressional intent to create one in the statute itself, 274 it is hard 
to see how this standard could be met. A more difficult question is whether 
HAVA, or at least some of its requirements, may be enforced under § 1983. 
HAVA expressly allows the U.S. Attorney General to bring suit for declaratory 
or injunctive relief, 275 though this is not dispositive of whether there is a § 1983 
right of action. 276 HAVA also requires an administrative complaint procedure for 
those who believe that there has been a violation of the statute. 277 This, however, 
falls well short of the comprehensive remedial scheme that might be deemed to 
demonstrate a congressional intent to foreclose a private judicial remedy. 278 
Under the HAVA-required administrative complaint process, states are required 
to have a process for receiving complaints but have unreviewable discretion to 
dismiss complaints if they find no violation, without any provision for judicial 
review. 279 Even in cases where they find a violation, it is up to states to 
determine the "appropriate remedy," again without any provision for judicial 



268. Id. § 15483(b)(1). 

269. Id. § i5483(b)(2)(A)(i)(II). 

270. Id. § 15482(b)(2)(A)(i)(b)(2)(B). 

271. Id. § 15483(a)(2). 

272. Id. § 15483(a)(4). 

273. Id. §§ 15483(a)(l)-(4). 

274. See supra notes 144-48. 

275. 42U.S.C. § 15511. 

276. See supra Parts II.A. & II.B. 

277. 42U.S.C. § 15512. 

278. See, e.g., City of Rancho Palos Verdes v. Abrams, 544 U.S. 1 13, 121 (2005); Middlesex 
Cnty. Sewerage Auth. v. Nat'l Seal Clammers Ass'n, 453 U.S. 1, 13 (1981). 

279. 42 U.S.C. § 15512(a)(2)(G). 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 49 



review. 280 This is a far cry from the sort of "comprehensive enforcement 
mechanism[]" 281 that the Court has required to foreclose a right of action under 
§ 1983. 282 

The legislative history of HAVA is also of little help in determining whether 
its requirements may be privately enforced. There is only one statement from the 
floor debate expressly addressing the subject. 283 In commenting on the 
Conference Report on the bill, Senator Chris Dodd, one of HAVA' s co-sponsors, 
stated that he "would have preferred that we extend the private right of action 
afforded private parties under [the National Voter Registration Act]," but that the 
House (at that time controlled by Republicans) "simply would not entertain such 
an enforcement provisions [sic]." 284 Assuming that this statement is true, it 
explains why there is no express private right of action in HAVA, but it tells us 
nothing about whether any provisions of the statute creates rights enforceable 
under §1983. 

Given that both the statutory text and the legislative history are silent on the 
private enforceability of HAVA's obligations under § 1983, it is no surprise that 
the issue has found its way into court. The question has arisen with respect to 
three specific requirements of HAVA: (1) that provisional ballots be provided 
to certain voters; (2) that accessible technology be made available for people with 
disabilities; and (3) that information in state voter registration databases be 
matched against other records. What is interesting about these three parts of the 
statute is that they can be placed at different points along the spectrum in terms 
of their creating individual rights as required by existing doctrine. The first 
requirement clearly does create an enforceable right, the second arguably does 
so, while the third clearly does not do so. 

The provision of HAVA that most clearly confers an individual right, thus 
satisfying Gonzaga's demanding test, is the requirement that certain voters be 
provided with provisional ballots. In Sandusky County Democratic Party v. 
Blackwell, 2 * 5 the Sixth Circuit correctly held that this requirement contains the 
sort of rights-creating language necessary for private enforceability under § 
1983. 286 In that case, a local party organization claimed that Ohio's secretary of 



280. Id. § 15512(a)(2)(F). 

28 1 . See Nat 7 Sea Clammers Ass 'n, 453 U.S. at 20. 

282. See Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 4 1 8, 425 ( 1 987) 
(refusing to find congressional intent to foreclose §1983 remedy, where statute lacked a 
comprehensive and effective private remedy). 

283. I base this statement on a Boolean search for "('help america vote' or 'election reform') 
and ('private right' or 'private cause')" in LexisNexis's "Congressional Record - 107th Congress" 
database. The statements by Senator Chris Dodd discussed in the text are the only ones on the topic 
of private rights of action to enforce HAVA's requirements. 

284. 148 CONG. Rec. SI 0508 (daily ed. Oct. 16, 2002) (statement of Sen. Dodd). 

285. 387 F.3d 565 (6th Cir. 2004). 

286. Id. at 572-73. Two district courts have reached the same conclusion on HAVA's 
provisional voting requirement. Citing the same language as the Sixth Circuit, the court in Florida 
Democratic Party v. Hood concluded: "The relevant section of HAVA clearly evinces a 



1 50 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



state was in violation of HAVA by refusing to issue provisional ballots to or 
count the ballots of voters appearing at the wrong precinct. After reciting the 
doctrine articulated in the line of cases extending through Gonzaga, the Sixth 
Circuit turned to the language of HAVA's provisional voting requirement, 
finding that its "rights-creating language ... is unambiguous." 287 The court 
emphasized that HAVA's language refers to an "individual" being permitted to 
cast a provisional ballot, if he or she complies with certain specific criteria. 288 
The statutory text also specifically refers to the "right of an individual to cast a 
provisional ballot." 289 This language is similar to that contained in Titles VI 290 
and IX 291 of the Civil Rights Act, and quite unlike that at issue in Gonzaga, 
which referred not to individuals but instead to programmatic requirements. 292 
As the Sixth Circuit's opinion suggests, this is a relatively easy case, even under 
the stringent test that now exists for private enforcement under § 1983. 293 
Congress explicitly conferred an individual right to a provisional ballot on certain 
voters, and there is no comprehensive remedial scheme that would overcome the 
presumption that a private right of action lies. 

A more difficult question is whether HAVA's disability access mandate is 
privately enforceable under § 1983. HAVA requires that voting systems be 
"accessible to individuals with disabilities," specifically mandating that states 
provide access for visually impaired voters so that they will have the "same 
opportunity for access and participation (including privacy and independence) 
as for other voters." 294 Although the statute does not use the word "right," there 
is no doubt at all about what individuals this requirement is designed to benefit, 
and the statute even refers to those specific individuals. 295 Is this enough to 
satisfy Gonzaga's requirement that there be an unambiguously conferred 
individual right in order to sue under § 1983? There is little precedent on this 
question, though two district courts have answered the question in the negative. 296 



congressional intention to create a federal right." 342 F. Supp. 2d 1073, 1078 (N.D. Fla. 2004). 
The district court in Bay County Democratic Party v. Land likewise held that this section contains 
the "type of unmistakable rights-focused language that the Supreme Court has" required for a § 
1983 claim. 347 F. Supp. 2d 404, 426 (E.D. Mich. 2004). 

287. Sandusky Cnty. Democratic Party, 387F.3dat572. 

288. Id. at 574. 

289. Id. at 573 (quoting 42 U.S.C. § 15482(b)(2)(E) (2006)) (emphasis omitted). 

290. 42 U.S.C. § 2000d (using the language "[n]o person" to confer individual rights). 

291. 20 U.S.C. § 1681 (using the language "[n]o person" to confer individual rights). 

292. See supra notes 1 83-89. 

293. In saying this is an easy case, I am referring only to the conclusion that there is a private 
right of action. On the merits, the Sixth Circuit concluded that voters were entitled to cast a 
provisional ballot if they affirmed that they were eligible and registered to vote, but that these 
provisional ballots need not be counted if voters appeared in the wrong precinct. Sandusky Cnty. 
Democratic Party, 387 F.3d at 574-79. 

294. 42 U.S.C. § 15481(a)(3)(A). 

295. See id. 

296. See Taylor v. Onorato, 428 F. Supp. 2d 384, 386 (W.D. Pa. 2006); Paralyzed Veterans 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 5 1 



One of those decisions, Taylor v. Onorato 291 applied the wrong legal test. In 
denying plaintiffs relief, the court stated: "Nowhere in [HAVA] . . . does 
Congress indicate an intention that . . . [its voting equipment requirements] may 
be enforced by private individuals." 298 But as I have explained, that is not the 
appropriate test for rights of action under § 1983, for which plaintiffs are not 
required to demonstrate that Congress intended to create a private remedy but 
rather to show that it created an individual right. 

The other disability access decision, Paralyzed Veterans of America v. 
McPherson 299 is more careful in its analysis, though it reaches the same 
conclusion. 300 After considering and rejecting the argument that Gonzaga only 
applies to statutes enacted under the Spending Clause, the Paralyzed Veterans 
court considered whether HAVA' s disability access requirement unambiguously 
conferred an individual right. 301 The court acknowledged the question to be a 
close and difficult one and found that Congress had not "expressly or impliedly" 
shut the door on § 1983 enforcement. 302 It also found that, given HAVA's 
relatively clear mandate on disability access, private enforcement of this 
requirement would not "strain judicial competence." 303 The court nevertheless 
held that this requirement was not enforceable under § 1983 due to the absence 
of unambiguous rights-creating language. 304 As applied by the court in Paralyzed 
Veterans, then, Gonzaga is a highly formalistic test. If the statute uses the term 
"right," then it is presumptively enforceable under § 1983; if not, it is 
presumptively unenforceable — even if, as with HAVA's disability access 
requirements, it is very clear whom the statute is designed to benefit. This is a 
defensible, though debatable, understanding of Gonzaga' s test. The alternative 
understanding is that a statutory requirement is presumptively enforceable under 
§ 1983 so long as it is clear that Congress intended to protect a particular class 
of individuals. Measured by this less formalistic, more functional standard, 
HAVA's disability access requirement would be privately enforceable. 

The third provision of HAVA on which the question of private enforceability 
has arisen concerns the "matching" of information in statewide registration 
databases against motor vehicle records. It was this provision that was at issue 
in the Supreme Court's brief per curiam opinion in Brunner v. Ohio Republican 
Party. 305 In that case, the Ohio Republican Party claimed that Ohio's Democratic 
secretary of state was not matching voter registration information for new 



of Am. v. McPherson, No. C06-4670, 2006 WL 3462780, at *10 (N.D. Cal. Nov. 28, 2006). 

297. Taylor, 428 F. Supp. 2d 384. 

298. Mat 386. 

299. Paralyzed Veterans, 2006 WL 3462780. 

300. Mat* 10. 

301. Mat*8. 

302. Id. at *9. 

303. Id. at HO. 

304. Id. 

305. 129 S. Ct. 5, 6 (2008) (per curiam). 



1 52 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



registrants, as the statute requires. 306 The relevant provision of HAVA reads as 
follows: 

The chief State election official and the official responsible for the State 
motor vehicle authority of a State shall enter into an agreement to match 
information in the database of the statewide voter registration system 
with information in the database of the motor vehicle authority to the 
extent required to enable each such official to verify the accuracy of the 
information provided on applications for voter registration. 307 

It is difficult to see how this language confers an individual right upon 
anyone, much less how it does so "unambiguously" as Gonzaga requires. That 
is true whether one embraces a formalistic or functional understanding of 
Gonzaga. Not only does the statutory language avoid the term "right," but the 
statute does not benefit any specific class of individuals. It simply requires 
election officials to enter into matching agreements with their states' motor 
vehicle authorities, to the extent required to verify accuracy. Even putting aside 
the fact that the statute mandates only an agreement — and not, at least explicitly, 
the actual matching of voters — the statute is aimed at ensuring that voter 
registration information is accurate. There is no express indication of whom this 
provision is designed to benefit. In fact, the provision is aimed not at protecting 
any specific individuals, but rather at protecting the integrity of the system, by 
preventing voters from registering with false or inaccurate information. This 
requirement might well protect the public at large, by preventing voting by 
people who are not eligible (because they are disenfranchised felons or 
noncitizens, for example) and by preventing double-voting. But it does not 
unambiguously confer a right upon anyone, as Gonzaga demands. 

Nevertheless, and quite remarkably, the lower courts found that the Ohio 
Republican Party had a right to sue under § 1983 to enforce HAVA's matching 
requirement. 308 The district court found there to be a private right of action and 
issued a temporary restraining order against the Ohio secretary of state. 309 Its 
cursory analysis failed even to consider whether this provision unambiguously 
conferred an individual right. Instead, the court relied on Sandusky County 
Democratic Party's conclusion that the provisional voting requirement was 
privately enforceable, noting that there was no indication that Congress intended 
to close the door to private litigation. 310 This misses the predicate question of 
whether the matching provision unambiguously confers an individual right. 

A three-judge panel subsequently vacated the district court's order on the 



306. Id. 

307. 42 U.S.C. § 15483(a)(5)(B)(i) (2006). 

308. Ohio Republican Party v. Brunner, 582 F. Supp. 2d 957, 962 (S.D. Ohio), aff'd, 544 F.3d 
71 1 (6th Cir.) (en banc), vacated, 129 S. Ct. 5 (2008) (per curiam). 

309. Ohio Republican Party, 582 F. Supp. 2d at 966. 

3 1 0. Id. at 962 (citing Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th 
Cir. 2004)). 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 53 



merits, 31 1 but the en banc Sixth Circuit reversed and reinstated the district court's 
decision. 312 Judge Sutton's opinion for a majority of the en banc court recites the 
existing test, acknowledging that Gonzaga requires an "unambiguously 
conferred" right. 313 There is nothing in the above-quoted language that comes 
close to conferring a right on any individual, much less does so 
"unambiguously" — and the en banc majority did not really argue to the contrary. 
Instead, the en banc court upheld the district court's order on the ground that, in 
this case, there is no individual to whom rights-creating language could 
conceivably apply. 314 As the court put it, this provision is one that "effectively 
benefits everyone but no one in particular." 315 Accordingly, Judge Sutton's 
majority opinion understood the Gonzaga test not to apply to this sort of case. 
Whatever the advantages of this mode of analysis, it is not consistent with 
Gonzaga, which is quite explicit in requiring that the relevant statute 
unambiguously confer a federal right. 316 Judge Moore convincingly made this 
point in her dissent from the en banc decision, noting that there is "absolutely no 
rights-creating language" in HAVA's matching statute. 317 As she rightly 
concluded, this was an easy case under Gonzaga' s demanding standard — one that 
the district court had clearly gotten wrong. 

Although the en banc majority characterized the question before it as a 
"close" one, 318 it really was nothing of the sort. The conclusion that there is a 
private right of action to enforce the matching requirement is not defensible 
under Gonzaga. In this respect, the issue before the Supreme Court in Brunner 
was quite straightforward. The Court reversed the Sixth Circuit in a one- 
paragraph order, addressing the private-right-of-action issue in a single sentence: 
"Respondents, however, are not sufficiently likely to prevail on the question 
whether Congress has authorized the District Court to enforce Section 303 [of 
HAVA] in an action brought by a private litigant to justify the issuance of a 
TRO." 319 Given the absence of an unambiguously conferred right in HAVA's 
matching provision, this conclusion is undeniably correct under existing law. 

The problem is that existing doctrine is wrong, at least when it comes to 
disputes implicating the electoral process. That doctrine misses the fact that 
electoral disputes implicate a different sort of interest than classic individual- 
rights cases. As Judge Sutton's en banc opinion recognized, they involve 
quintessentiaHy/?w6//c rights. 320 Existing private-right-of-action doctrine fails to 



311. Ohio Republican Party, 544 F.3d at 7 1 5 . 

312. Mat 720-21. 

313. Id. at 720 (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002)). 

314. Id. 

315. Id. 

316. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). 

317. Ohio Republican Party, 544 F.3d at 727 (Moore, J., dissenting). 

318. Mat 719. 

319. Brunner v. Ohio Republican Party, 129 S. Ct. 5, 6 (2008) (per curiam) (citing Gonzaga 
Univ., 536 U.S. at 283); Alexander v. Sandoval, 532 U.S. 275, 286 (2001). 

320. Ohio Republican Party, 544 F.3d at 720. 



1 54 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



recognize such non-individuated or collective rights. But as I shall now argue, 
it should. 

IV. Public Rights in Federal Election Law 

To this point, I have focused on the explanation and application of existing 
doctrine on private rights of action. As explained in Part II, Gonzaga forbids 
private enforcement of federal statutes through § 1983 absent an unambiguously 
conferred individual right. As explained in Part III, the Sixth Circuit failed to 
apply this doctrine in Ohio Republican Party v. Brunner. In this Part, I turn from 
application of existing doctrine to a critique of that doctrine, arguing that existing 
private-right-of-action doctrine fails to account for the vital role that federal 
courts play in overseeing U.S. election administration. 

There is both a conceptual and practical dimension to the institutional role 
of federal courts when it comes to elections and, accordingly, to the problems 
with applying the existing test for private rights of action to cases arising in this 
area. Conceptually, election cases typically involve non-individuated harms. 
Brunner is a perfect example. The harms that would arise from a failure to 
comply with HAVA's matching procedures were not ones that would flow to any 
identifiable individual. They were instead injuries that could only be understood 
though their aggregate effect on voters and, more broadly, on the electoral system 
as a whole. This is what Judge Sutton's opinion for the en banc majority was 
getting at, in referring to HAVA's matching requirement as one that "effectively 
benefits everyone but no one in particular." 321 That requirement is designed to 
prevent the systematic skewing of elections, which might occur if ineligible 
people were to register and vote. While some commentators — myself 
included — believe those risks are greatly exaggerated, Judge Sutton was correct 
to recognize that the interests protected by HAVA's matching requirement 
cannot readily be conceptualized in individualistic terms. 322 This requirement is 
instead aimed at diffused harms that arise from the aggregate nature of the right 
to vote, the fact that each person's vote becomes meaningful only when joined 
with those of like-minded others. 323 

In this sense, the interest at stake in Brunner is typical of election cases, 
which tend to involve systemic rather than merely atomistic injuries. 324 The real 
problem is not (or at least not just) the harm to individual voters, but rather the 
risk that an electoral law or practice will disproportionately harm certain groups 
of voters, thereby threatening to skew electoral outcomes and, more broadly, the 
distribution of political power. It is in this sense that the interests protected by 



321. Id. 

322. See supra note 3 1 1 and accompanying text. 

323. See Heather K. Gerken, Understanding the Right to an Undiluted Vote, 1 14 HARV. L. 
Rev. 1663(2001). 

324. Saul Zipkin makes a similar point in a forthcoming article, arguing that the "structural" 
harms typically at stake in election cases call for a modified standing inquiry. Zipkin, supra note 
10 (manuscript at 5). 



2010] FEDERAL ELECTION LAWS ENFORCEMENT 155 



statutes like HAVA are best conceived as public rights. They belong to groups 
of citizens and to the larger public rather than to specific, identifiable 
individuals. 325 The idea that there must be an individual right, as Gonzaga 
demands, therefore misses the main interest that is typically at stake in election 
disputes. 326 The en banc majority in Ohio Republican Party v. Brunner 321 was 
right to recognize that the statute was aimed at protecting such rights. Its error 
was in thinking that existing doctrine allows for them to be considered. 

Brunner provides a particularly salient example of a federal statute protecting 
a public right, given that the harm of which the Ohio Republican Party 
complained could not readily be understood in individual terms. 328 But it is not 
an isolated case. Other federal statutory requirements also protect group or 
collective interests, even though they may protect individual interests as well. 
Examples include each of the federal statutes discussed in Part III. As I have 
explained, § 1 97 l's qualification and registration requirements can be understood 
as protecting the individual right to equal treatment. 329 Accordingly, there is a 
strong argument that these requirements are privately enforceable, even under the 
Gonzaga test. But these requirements do more than protect the individual right 
to vote; they also prevent systematic exclusion of certain groups of voters, 
including racial minorities, students, and women. 330 So too, UOCAVA does not 
merely protect the individual right to vote for uniformed and overseas voters, but 
prevents the systemic harm that would arise if these groups of voters were 
disproportionately excluded. Even provisions that are not clearly targeted to any 
specific individuals — such as UOCAVA 's data collection provision — serve the 
collective interest of promoting a more fair and inclusive electoral process. 

HAVA' s various requirements likewise promote a fair electoral process, one 
that does not systematically skew elections for or against certain groups of 
voters. An example is HAVA's mandate that states ensure that "only voters who 
are not registered or who are not eligible to vote are removed." 331 In addition to 
protecting individuals from being wrongfully purged, this requirement prevents 
the systemic unfairness that may result from the disproportionate removal of 
certain groups of voters — like racial minorities or college students — from the 



325. In arguing for private enforcement of public rights, I disagree with Professor Sunstein, 
who has argued that statutes protecting collective interests should generally not be privately 
enforceable. Sunstein, supra note 87, at 435-36. Although not focused on election statutes, 
Professor Sunstein argued that "[cjollective benefits are more often, and sometimes more 
appropriately, protected through public enforcement mechanisms than through private remedies." 
Id. at 435. This argument may have some currency with respect to statutes protecting other 
collective interests, but it has very little in the election-law context, for the reasons set forth in the 
text below. 

326. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). 

327. 544 F.3d 711 (6th Cir.) (en banc), vacated, 129 S. Ct. 5 (2008). 

328. Id. at 720. 

329. 42U.S.C. § 1971(2006). 

330. See supra note 216 and accompanying text. 

331. 42 U.S.C. § 15483(a)(2)(B)(ii). 



156 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



rolls. 

The idea that election laws protect collective as well as individual interests 
is, of course, a familiar one. It recalls the long-running debate among election 
law scholars over whether judicial review should focus on the protection of 
individual rights or the promotion of a fair democratic structure. 332 Structuralists 
have tended to focus on the collective interest in a fair democratic process, which 
I have called public rights, while proponents of the rights-based perspective have 
tended to focus on individual interests. Even if one takes a rights-based view of 
judicial review, however, that does not preclude the recognition of public rights 
as a basis for private enforcement of federal election statutes. 333 Whatever one's 
perspective on the appropriate role of courts in constitutional cases, it must be 
acknowledged that, when Congress enacts laws regulating the democratic 
process, those statutes sometimes protect collective interests as well as individual 
ones. The doctrine on private rights of actions should, accordingly, allow 
litigants to sue under § 1983 where a statute protects such public rights, and not 
just when it protects the individual right to vote. One need not be a structuralist 
to support the broad enforceability of election statutes, whether they protect 
individual or collective interests. 

I have thus far explained why applying the Gonzaga test for private rights of 
action to election law cases is problematic on a conceptual level — namely, 
because this test fails to recognize that election statutes often confer public rights 
rather than just private or individual rights. But there is also a practical 
dimension to the problem, which concerns the unfortunate consequences that 
arise from applying the stringent test for private enforcement to election disputes. 
The Gonzaga test does not simply require that the federal statute protect an 
individual right; it also requires that the right be unambiguously conferred. 334 At 
least some courts have interpreted this requirement quite formalistically, as 
demanding that the statute use the word "right" (or some close approximation), 
as in the cases denying private enforcement of HAVA's disability access 
requirements. 

The practical problem with applying such a demanding test to election 
statutes relates to the vital role that federal courts now play in overseeing 



332. Sam Issacharoff and Rick Pildes are the leading proponents of the structural perspective, 
arguing that democratic politics be thought of as a sort of marketplace, with courts intervening to 
promote robust political competition. See Samuel Issacharoff & Richard H. Pildes, Politics As 
Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 ( 1 998). On the other 
side of the debate, Rick Hasen argues that courts should focus on promoting equality rights, rather 
than focusing on structural concerns, in determining when to intervene in democratic politics. 
Richard L. Hasen, The Supreme Court and Election Law: Judging Equality from Baker 
v. Carr to Bush v. Gore 138-56 (2003). 

333. The conception of equality that Professor Hasen advances includes a "collective action" 
principle, prohibiting unreasonable barriers to groups organizing politically. Hasen, supra note 
332, at 88. This maybe capacious enough to accommodate the non-individuated interests protected 
by statutes like HAVA. 

334. Gonzaga Univ. v. Doe, 536 U.S. 273, 282 (2002). 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 57 



American election administration, as described in Part I. Without a strong central 
election authority (as in India 335 ) or a formal role for the judiciary in running 
elections (as in France 336 ), the administration of U.S. elections is largely in the 
hands of party-affiliated election officials at the state and local level. Since 
2000, federal courts have quite properly played a more active role in policing 
election administration, sometimes through constitutional adjudication and at 
other times through the enforcement of federal statutes. Without a private right 
of action, interpretation and implementation of federal election harms is left to 
the discretion of state and local election officials, many of whom have a conflict 
of interest because they are affiliated with political parties or elected to office. 
The only federal entity with the power to enforce those laws would be the U.S. 
Department of Justice (DOJ), which has a checkered history when it comes to the 
evenhanded enforcement of election statutes. 337 Leaving DOJ as the sole 
gatekeeper to the federal courts also tends to impede efforts to obtain 
authoritative clarification of ambiguous statutes such as HAVA, given the 
absence of a federal agency empowered to promulgate binding regulations. It 
also raises the possibility that federal election laws will be enforced only, or at 
least predominantly, in those instances where doing so will benefit the 
President's party. Allowing a private right of action thus provides a check on 
potential partisanship by DOJ, as well as state and local election officials. 

It is certainly true that in some areas of law, allowing a private right of action 
might impede consistent implementation of federal law. 338 That is especially true 
where Congress has created an administrative agency with interpretive or 
enforcement authority. For better or for worse, that is not a problem with respect 
to the federal election statutes discussed in Part III, particularly HAVA, given the 
absence of an administrative agency with the power to issue binding 
interpretations of law. In fact, Congress specifically denied the EAC regulatory 
authority (outside of one narrow area) when it enacted HAVA. 339 Accordingly, 
private enforcement through § 1983 poses no real danger of muddying the law 
or impeding administrative enforcement. 

Unfortunately, the Brunner Court did not consider either the conceptual or 
practical problems with applying existing private-right-of-action doctrine to 
election disputes. This is not surprising, given the brevity of the opinion and the 
compressed timetable on which the case was decided. In fact, the difficulty of 
thinking through all the ramifications of a decision is one of the main reasons for 
the Supreme Court being extraordinarily cautious in deciding whether to grant 
certiorari of pre-election cases. 340 In the appropriate case, the Court should 
revisit the issue and carve out an exception to the demanding test it has generally 



335. India Const. Dec. 1, 2007, art. 329(b). 

336. 1958 Const, art. 58 (Fr.). 

337. See Tokaji, If It 's Broke, Fix It, supra note 1 2, at 798-8 15. 

338. Stewart & Sunstein, supra note 92, at 1290-94 (giving examples of such areas of law). 

339. 42U.S.C. § 15329(2006). That area is mail voting under the NVRA. See id. §§ 1973gg- 
1973gg-10. 

340. See Tokaji, Leave It to the Lower Courts, supra note 17, at 1067, 1094. 



158 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



prescribed for private enforcement under §1983. Where federal election statutes 
are at issue, it should allow enforcement of public (and not just individual) rights 
and eliminate the requirement that the statute unambiguously confer a right, as 
Gonzaga demands. 341 

I close by considering two possible objections to my suggestion of a more 
generous test for private enforcement of federal election statutes. The first 
objection is that it would violate separation of powers. This is a familiar 
objection, extending at least as far back as Justice Powell's dissenting opinion 
in Cannon? 42 It is for Congress to determine whether and how federal statutes 
are to be enforced, the argument goes. Accordingly, it would violate separation 
of powers to allow a private right of action in cases where Congress has not done 
so. 

This argument would have some force in cases where congressional intent 
to preclude enforcement through § 1983 is clear. In such cases, I would 
acknowledge that the statute cannot be enforced. But the set of cases with which 
this Article has been concerned are ones in which congressional intent is not 
clear — and it is therefore up to the courts to determine whether a private right of 
action lies. All three of the federal election statutes discussed above fall into this 
category. 343 Where congressional intent is not clear, courts can and should adopt 
presumptions to guide the determination whether the statutory requirement is 
privately enforceable. The Court has done just that, in adopting a general 
presumption against implication of private rights of action, and in generally 
refusing to allow § 1983 absent an unambiguously conferred individual right. 344 
My argument is not that federal courts should disregard legislative intent, but 
rather that they should adopt a different presumption in election cases where the 
intent of Congress is not clear. 345 Should Congress disagree, it is always free to 



341. Gonzaga v. Doe, 536 U.S. 273, 282-83 (2002). 

342. Cannon v. Univ. of Chi., 44 1 U.S. 677, 733 (1 979) ( Powell, J., dissenting) (asserting that 
for almost fifty years after Rigsby, the only other statute under which the Court had recognized an 
implied right of action was under the Railway Labor Act of 1926). 

343 . That includes HAVA, and Senator Dodd's statement that Republicans would not support 
inclusion of a right of action in the statute {supra note 284 and accompanying text) does not alter 
that conclusion. All this means is that Congress could not agree on whether to include an express 
right of action, thus throwing the question of its enforceability under § 1983 to the courts. 

344. See supra Part II.B. 

345. One might argue that my proposed revision changes the default rule, of which Congress 
should be presumed aware when it legislates. In other words, Congress knows that a statute like 
HAVA will not be enforceable unless it unambiguously confers individual rights. It therefore has 
reason to expect that requirements will not be privately enforced if they do not confer such a right. 
But this argument proves too much, for any judicial alteration to the rules governing rights of action 
(either implied or under § 1983) necessarily changes the default rule against which Congress 
legislates. Thus, if this argument were accepted, then all the decisions discussed in Part II that 
modified right-of-action doctrine are necessarily wrong. Moreover, there is little reason to believe 
that members of Congress are paying such close attention to the changing nuances of private-right- 
of-action doctrine. Accordingly, the modest change in the rule for private rights action that I 



20 1 0] FEDERAL ELECTION LAWS ENFORCEMENT 1 59 



overrule the courts by taking away the right of action that they have allowed. 

The other objection to my argument for private enforceability has to do with 
judicial competence in cases where the legal mandate is open to reasonable 
competing interpretations. At least in some cases, federal election law disputes 
may involve vague or ambiguous requirements. State and local election officials 
may be in a better position to evaluate the harms and benefits that would flow 
from a particular decision. By contrast, the argument goes, federal judges are 
likely to be inexperienced in running elections and therefore ill-equipped to 
balance competing harms. To concretize this problem, it is helpful to return to 
the set of facts that gave rise to Brunner. ue Recall that the Ohio Republican 
Party claimed that the secretary of state was violating a statute requiring her to 
enter into an agreement to "match" voter registration information against other 
records "to the extent required to enable each such official to verify the accuracy 
of the information provided." 347 Even assuming that this statute can be read as 
a mandate that election officials conduct registration matching, the statute is not 
very precise about when and how this matching should be done. 348 For example, 
what if there are minor discrepancies between the information in different 
databases? Under what circumstances is matching "required" to verify voter 
registration information? May a state dispense with matching entirely if it has 
a voter identification requirement to verify voter eligibility, as in Ohio? 349 Those 
who worry about judicial competence might contend that such judgments should 
be left to election officials, not made by federal judges. 

There is considerable force to the concern that federal judges may act beyond 
their competence by supplanting the discretionary judgments of state and local 
election officials. But this is not a persuasive argument against allowing private 
enforcement of election statutes as a general matter. After all, the standard for 
determining whether there should be a private right of action under § 1983 
already takes into consideration the specificity of the statutory mandate. Under 
Golden Transit, one of the three factors is whether the interest protected is 
sufficiently specific as to be judicially enforceable. 350 I do not propose that this 
factor be eliminated from the test. In addition, concerns regarding judicial 
competence may be taken into consideration when courts get to the merits of a 
dispute, and not simply when determining whether a right of action exists. In the 
dispute over the maintenance of state registration databases, for example, a court 
might well interpret HAVA to leave some discretion in election officials to 
determine whether and how to conduct matches. They might be more deferential 
to determinations made by election management bodies that are insulated from 
partisan politics (as in Wisconsin) than they are to determinations made by party- 



advocate cannot plausibly be said to upset Congress's expectations. 

346. Brunner v. Ohio Republican Party, 129 S. Ct. 5 (2008) (per curiam). 

347. Ohio Republican Party v. Brunner, 544 F.3d 711,713-14 (6th Cir.) (en banc) (quoting 
42 U.S.C. § 15483(a)(5)(B)(i) (2006)), vacated, 129 S. Ct. 5 (2008). 

348. See Tokaji, Voter Registration and Institutional Reform, supra note 19, at 6-7. 

349. Id. 

350. Golden State Transit Corp. v. City of L.A., 493 U.S. 103, 108 (1989). 



1 60 INDIANA LAW REVIEW [Vol. 44: 1 1 3 



affiliated state election officials (as in Ohio). 351 Judicial competence is therefore 
a serious concern, but it does not necessarily counsel against a private right of 
action; rather it may instead be considered at the merits stage in determining and 
applying the appropriate legal standard. 

Conclusion 

Election cases are different. 352 They frequently involve collective interests, 
or public rights, that are not easily individuated. And they are cases for which 
a federal judicial forum is often vital, given the pervasive decentralization and 
partisanship of American election administration and the absence of an 
administrative body able to ensure the consistent implementation of the law. In 
Brunner, the Court failed to consider these distinctive aspects of federal election 
law disputes. 353 In fact, both the lower courts and the Supreme Court got it 
wrong in that case — even though they arrived at diametrically opposite 
conclusions. The lower courts incorrectly applied existing precedent, most 
notably Gonzaga, which clearly foreclosed private enforcement of HAVA's 
matching requirement given the absence of an unambiguously conferred 
individual right. 354 But the Supreme Court was also incorrect in failing to 
reconsider this precedent to account for the especially important role the federal 
courts play in electoral disputes. Though faithfully applying existing doctrine, 
the Supreme Court missed the opportunity to correct — or at least limit — a line of 
precedent that has unfortunate consequences in the realm of election law. In the 
appropriate case, the Court should revisit Brunner and relax the standard for 
private enforcement of federal election statutes under § 1983. 



35 1 . Tokaji, Voter Registration and Institutional Reform, supra note 1 9, at 8. I have chosen 
these states because they are ones in which database matching actually arose in 2008 and because 
they have contrasting methods of selecting their state election authorities. I have elsewhere argued 
that courts should be more deferential to election management bodies that are insulated from 
partisan politics than they are to election officials who have conflict of interest by virtue of their 
party affiliation. See Tokaji, Lowenstein Contra Lowenstein, supra note 1 1 . 

352. See generally Frederick Schauer & Richard H. Pildes, Electoral Exceptionalism and the 
First Amendment, 11 TEX. L. REV. 1 803 ( 1 999) (considering the possibility of special constitutional 
principles in the context of democratic politics). 

353. Brunner v. Ohio Republican Party, 129 S. Ct. 5 (2008) (per curiam). 

354. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). 



Language Assistance and Local Voting Rights Law 



Angelo N. Ancheta* 



Introduction 

In 2007, the City of Beverly Hills, California became entangled in a heated 
controversy over a local election policy designed to assist a major segment of its 
citizenry — one that by some estimates had grown to over one-quarter of the city's 
population of 35,000/ For the March 2007 municipal election, the city clerk's 
office had taken steps to translate the absentee and sample ballots into Farsi, the 
language commonly read and spoken by individuals of Iranian descent. Although 
Farsi translations of voting materials had first been employed two years earlier 
to assist Iranian American voters, the materials for the upcoming election ignited 
a new debate because of the city clerk's decision to mail multilingual 
ballots — with Farsi characters in large print on the cover and throughout the 
booklet — to all registered Beverly Hills voters, not simply to those who had 
requested translated ballots. 

The city clerk's office was quickly flooded with telephone calls from 
hundreds of voters complaining about the materials for the upcoming election. 
Speaking to the local press, one Beverly Hills voter stated, "We got the ballot in 
the mail and there were all kinds of languages splattered over the front page and 
I got offended by it." 2 Another resident added, "It sends a bad message. It's a 
message which is divisive, which I believe is designed to separate as opposed to 
unite. In fact, it's done that." 3 And one voter who felt especially affronted — and 
threw away the ballot immediately after casting an absentee vote — bluntly stated, 
"It really looked like a menu from a Farsi restaurant with a translation in 
English." 4 

In defense of the policy, the city clerk countered, "We don't want to 
disenfranchise any section of our community from voting. We're trying not to 
exclude. If writing the information in their language helps them to vote without 
anyone assisting them, we're going to do it." 5 Reinforcing the Beverly Hills City 
Council's interest in promoting civic engagement, the city attorney commented 
that the council had requested Farsi translations three years earlier because "there 



* Executive Director, Katharine & George Alexander Community Law Center, Santa Clara 
University School of Law. Special thanks to Ryan Watkins for his research assistance; to Michael 
Pitts, Rachel Moran, Ming Hsu Chen, Jocelyn Benson, Terry Ao, Eugene Lee, Glenn Magpantay, 
and Jacquelyn Maruhashi for their generosity in reviewing earlier versions of this Article; and to 
the participants and editors of the Indiana Law Review Symposium on The Law of Democracy for 
their helpful suggestions. 

1 . See Tony Barboza, For Some, Beverly Hills Ballots Went Too Farsi, L. A. TIMES, Feb. 23 , 
2007, at Al ; Ryan Vaillancourt, Translated Sample Ballots Spark Community Backlash, BEVERLY 
Hills Wkly., Feb. 15, 2007, at 3. 

2. Vaillancourt, supra note 1, at 3. 

3. Barboza, supra note 1 . 

4. Id. 

5. Id. 



162 INDIANA LAW REVIEW [Vol. 44:161 



was a need in the community and it would encourage more and better informed 
political participation. Technically, Beverly Hills is not required by federal law 
to translate [election materials] into Farsi." 6 

However, Jimmy Delshad, an Iranian American member of the city council 
who became the mayor of Beverly Hills after the 2007 election, 7 offered a more 
guarded opinion of the translated materials: "It's possible that this ballot has 
gone overboard. We want to reach out to others, but at the same time make it one 
unified community[.] To the extent that it might be divisive, I don't like it." 8 
Councilman Delshad' s skepticism ultimately signaled a shift in the city's election 
policy: the council voted in August 2007 to have the city clerk mail out ballots 
primarily in English during subsequent election cycles; separate Farsi ballots 
would continue to be printed, but would only be made available to voters upon 
request. 9 

Beverly Hills — a city more renowned for its glamour and affluence than for 
its immigrant communities and election laws — may have a unique political 
landscape, but comparable demographic changes, public policies, and shifts in 
local power dynamics have developed in cities and suburbs across the country. 
Communities ranging from major urban centers such as New York, Chicago, 
Philadelphia, Miami, and Minneapolis to small cities with immigrant enclaves 
such as Beverly Hills and West Hollywood in Southern California have enacted 
policies that offer voluntary language assistance to local voters. In Miami-Dade 
County, for example, translations are available in Creole to assist the local 
Haitian American population. In Southern California, ballots are offered in 
Armenian in Glendale, in Russian in West Hollywood, and in Khmer 
(Cambodian) in Long Beach. And in Chicago, forms of voter assistance are 
available in English and fifteen additional languages. These recent developments 
are particularly significant because they reflect policy initiatives that go well 
beyond federal language assistance mandates contained in the Voting Rights Act 



6. Vaillancourt, supra note 1, at 5. Local institutions also voiced support for the policy. 
A Los Angeles Times editorial article, for instance, noted, "There's nothing new about hostile 
reaction to foreign languages appearing alongside English on signs, pamphlets and other official 
reading material. But there's something more comical about it when it happens in Beverly Hills. 
. . . [where the] clash isn't about (comparatively) rich versus poor but rather (comparatively) rich 
versus rich." Editorial, Beverly Hills Is Within Its Rights, and Maybe Its Obligations, to Print 
Voting Materials in Persian, L.A. TIMES, Feb. 24, 2007, at A20. The editorial concluded, "Beverly 
Hills is completely justified in printing its ballots in Persian. Foreign tongues don't taint the ballot, 
they demonstrate the values it stands for." Id. 

1 . See Sonya Geis, Iran Native Becomes Mayor of Beverly Hills; Bridging Cultures Is a Big 
Part of His Role, WASH. POST, Apr. 1, 2007, at A3. 

8. Barboza, supra note 1 , at Al . Councilman Delshad later asserted that the Farsi ballot had 
magnified resentment against Iranian Americans and that despite his eventual success in the 2007 
election, he had lost several hundred votes because of the backlash. Elisa Osegueda, Council Says 
Farsi Ballot Issue Misunderstood — System to Be Changed for the 2009 Elections, BEVERLY Hills 
Wkly., Aug. 23, 2007, at 3. 

9. Osegueda, supra note 8, at 3. 



20 1 0] LANGUAGE ASSISTANCE 1 63 



of 1965 ("the Act"). 10 

Local language assistance policies offer important insights into the strengths 
and weaknesses of federal voting rights law, as well as into larger questions 
about anti-discrimination law and the role of language assistance in helping 
communities integrate immigrants into civic life. The Voting Rights Act's 
primary language assistance mandates are structured largely to remedy 
discrimination in both the electoral process and in education — a root cause of 
depressed political participation by language minorities. However, the Act's 
mandates are not designed to address the needs of limited-English proficient 
voters as a whole. Recent state and local policies have therefore begun to fill 
significant gaps in federal law. 

Language assistance policies also provide insights into the expansion of 
voting rights jurisprudence more generally, a trend that is reflected both in local 
legislation and in remedies adopted in federal litigation involving local 
governments. Unlike the language assistance provisions of the Act, many recent 
policies are more aptly classified as accommodation measures, comparable to 
those developed in laws that address discrimination on the basis of disability or 
religion. Prospective rather than strictly remedial, these measures require the 
removal of impediments to participation in order to prevent discrimination 
against protected individuals. 11 In addition, language assistance policies offer 
insights into broader policy agendas that promote civic engagement and address 
the integration of immigrant populations into local communities. Language 
assistance in voting is often one of several tools — including offering greater 
opportunities for immigrants to learn English and providing language assistance 
in other key sectors such as education, social services, health care, and the justice 
system — that form a network of rights and services which promote civic 
participation. 

At the same time, language assistance is still a hotly contested political issue 
regardless of whether the underlying goal is remedying discrimination or 
promoting civic engagement. Federal, state, and local policymaking have been 
colored by longstanding debates between advocates of assimilation, who 
typically require English fluency as a precondition for civic activities such as 
voting, and those endorsing ethnic pluralism and the maintenance of non-English 
languages among minority groups. 12 Many policymakers and citizens remain 



10. Pub. L. No. 89-1 10, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 
1973bb-l (2006)). 

11. I have previously argued that trends at the federal level, including litigation under 
sections 203 and 2 of the Voting Rights Act, have pushed federal voting rights law in the direction 
of increased legal accommodations for language minorities. See Angelo N. Ancheta, Language 
Accommodation and the Voting Rights Act, in VOTING RIGHTS ACT REAUTHORIZATION OF 2006: 
Perspectives on Democracy, Participation, and Power 293 (Ana Henderson ed., 2007). My 
analysis here builds on that discussion and focuses on state and local developments as sources of 
movement toward greater language accommodations. 

12. See generally Ronald Schmidt, Sr. , Language Policy and Identity Politics in the 
United States 1 30-62 (2000) (comparing assimilationist and pluralist arguments); Juan F. Perea, 



1 64 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



resistant to change, and some governments have moved in the opposite direction 
of promoting language assistance, enacting English-only policies and significant 
restrictions on immigrants' rights. 13 Language assistance, as illustrated by the 
recent controversy in Beverly Hills over Farsi ballots, will no doubt remain a 
highly contentious issue in communities throughout the country. 

In this Article, I explore these developments through an analysis of federal, 
state, and local voting rights law. In Part I, I examine the scope of language 
needs nationwide and discuss the limits of the language assistance provisions of 
the Act. In Part II, I focus on state and local policymaking in a number of 
contexts: as elements of settlement agreements in federal litigation; in 
anticipation of impending mandates under the Act; and as voluntary efforts that 
respond to local populations and community needs. Although my analysis covers 
several states and localities, it is designed merely to be illustrative; I have made 
no attempt to engage in a comprehensive survey of the jurisdictions that provide 
language assistance. In Part III, I discuss the implications of local language 
assistance policies in advancing broader goals in anti-discrimination law, civic 
engagement, and immigrant integration. 

I. The Limits of Federal Language Assistance 

The Act is unusual among major civil rights laws in that it contains explicit 
protections for language minority groups. Widely used anti-discrimination 
statutes such as Title VI 14 and Title VII 15 of the Civil Rights Act of 1964 contain 
prohibitions on national origin discrimination. These prohibitions have been 
interpreted through agency regulations and by Executive Order to encompass 
forms of language discrimination, including speak-English-only policies. 16 The 
Act, however, contains no direct references to national origin discrimination. 
Instead, the Act contains several sections that address past and ongoing 
discrimination against specific language minority groups and promote electoral 
accessibility for limited-English proficient voters. 17 



Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official 
English, 11 Minn. L. Rev. 269 (1992) (outlining legal history of tensions between linguistic 
pluralism and assimilation). 

1 3 . See Pratheepan Gulasekaram, Sub-National Immigration Regulation and the Pursuit of 
Cultural Cohesion, 11 U. ClN. L. REV. 1441 (2009); Cristina M. Rodriguez, The Significance of the 
Local in Immigration Regulation, 106 MICH. L. Rev. 567 (2008). 

14. 42 U.S.C. §§ 2000d-2000d-4a (2006) (prohibiting discrimination by recipients of federal 
funding). 

15. Id. § § 2000e-2000e- 1 7 (2006 & Supp. 2008) (prohibiting discrimination in employment). 

16. See, e.g., Exec. Order No. 13,166, 3 C.F.R. § 289 (2000) (establishing standards for 
services to limited-English proficient individuals by federal agencies and recipients of federal 
funding); 29 C.F.R. § 1606.7 (2009) (addressing English-only rules in the workplace). 

17. See 42 U.S.C. § 1 973b(f) (2006) (congressional findings of voting discrimination against 
language minorities; prohibition of English-only elections; other remedial measures); id. § 1 973aa- 
la (bilingual election requirements); id. § 1973aa-6 (voting assistance for blind, disabled, or 



20 1 0] LANGUAGE ASSISTANCE 1 65 



The language rights provisions of the Act embody three distinct but related 
models of anti-discrimination enforcement. 18 One model — a structural 
remediation model — is embodied in the requirements of sections 4(f)(4) 19 and 
203 20 of the Act. Designed to be temporary and limited in scope, the mandates 
in these sections address the electoral and educational discrimination that 
Congress has documented against language minorities by requiring oral and 
written assistance in communities with large minority populations. A second 
model — a traditional anti-discrimination model — is embodied in section 2 of the 
Act, which is a permanent provision that prohibits discrimination on the basis of 
race, color, or membership in a language minority group. A third model — an 
accommodation model — is embodied in section 208, 21 which Congress added in 
1982 primarily to assist disabled and illiterate voters, but which has evolved into 
a guarantee of assistance for limited-English proficient voters as well. Together, 
these provisions form a network of language rights under the Act, but as census 
data and other empirical studies make clear, the needs of limited-English- 
speaking voters are considerably larger than the scope of the Act's coverage. 
Many of the basic limitations of the Act thus form the backdrop for the 
enactment of local policies designed to meet unaddressed language assistance 
needs. 

A. The Scope of Language Needs 

With numbers fueled by immigration, as well as by insufficient opportunities 
to learn English through public schools 22 and adult education programs, 23 limited- 
English proficient individuals constitute a large and growing segment of the 
American population. According to 2007 U.S. Census Bureau data, 19.7% of the 
American population aged five or over — over fifty-five million people — spoke 
a language other than English at home. 24 Of this number, approximately 24.5 



illiterate persons). The Act's general antidiscrimination provision, contained in section 2 of the 
Act, prohibits the denial or abridgement of the right to vote based on membership in a language 
minority group, in addition to prohibiting discrimination on account of race or color. Id. § 1 973(a) 
(cross-referencing language minority group rights contained in § 1973b(f)(2)). 

1 8 . See Ancheta, supra note 1 1 , at 3 00-05 . 

19. 42U.S.C. § 1973b(f). 

20. Id § 1973aa-la. 

21. Id § 1973aa-6. 

22. See H.R. Rep. No. 109-478, at 50-52 (2006), available at 2006 WL 1403199 
(summarizing congressional findings on educational inequalities facing language minorities). 

23. See James Thomas Tucker, The ESL Logjam: Waiting Times for Adult ESL 
Classes and the Impact on English Learners 1 (2006), available at http://www.naleo.org/ 
downloads/ESLReportLoRes.pdf. Data collected on English as a Second Language (ESL) adult 
education classes have revealed that waiting periods for enrolling in ESL classes can range from 
several weeks to a number of years; moreover, many ESL providers do not maintain waiting lists 
at all because the demand for classes far exceeds the supply. Id. at 1-2. 

24. Hyon B. Shin & Robert A. Kominski, U.S. Census Bureau, Language Use in the 



1 66 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



million people spoke English less than "very well," 25 thus meeting the definition 
of "limited-English proficient" under the Act. 26 The largest number of 
Americans who spoke English less than "very well" in 2007 were Spanish 
speakers — nearly 16.4 million people — with significant numbers of Chinese 
(1 .37 million), Vietnamese (over 744,000), and Korean speakers (over 61 8,000) 
falling into the less-than-very-well categories. 27 Other language groups have 
undergone major increases in recent years: from 1990 to 2000, the number of 
Russian speakers nearly tripled from 242,000 to 706,000, and, in 2000, 
approximately 57% (over 400,000) spoke English less than very well. 28 During 
the same period, the number of French Creole speakers, covering Haitian 
Americans, more than doubled from 1 88,000 to 453,000, and approximately 46% 
(over 200,000) spoke English less than very well. 29 



United States: 2007, at 2 tbl.l (Apr. 2010) [hereinafter Census — Language Use 2007], 
available at http://www.census.gov/prod/2010pubs/acs-12.pdf. The figures for 2007 marked an 
increase from 17.8% (46.9 million people) in 2000, 13.8% (3 1.8 million people) in 1990, and 11% 
(23.1 million people) in 1980. See id. at 6 tbl.2. 

25. Id. at 2 tbl.l. The U.S. Census Bureau categorizes English language ability under the 
headings "very well," "well," "not well," and "not at all." Id. at 1 . The Bureau also calculates the 
number of households that are "linguistically isolated" as a measure of how well an individual can 
communicate with public officials, medical personnel, and other service providers. Hyon B. Shin 
& Rosalind Bruno, U.S. Census Bureau, Language Use and English-Speaking Ability: 
2000, at 9 (Oct. 2003) [hereinafter Census — Language Use 2000], available at http://www. 
census.gov/prod/2003pubs/c2kbr-29.pdf. A linguistically isolated household is "one in which no 
person aged [fourteen] or over speaks English at least '[v]ery well.'" In 2000, over 4.4 million 
households — covering 1 1.9 million people — were considered linguistically isolated. Id. at 10. 

26. See 42 U.S.C. § 1973aa-la(b)(3)(B) (2006) (defining limited-English proficient voters 
as individuals who are "unable to speak or understand English adequately enough to participate in 
the electoral process"). The House Report on the 1992 Amendments to the Act identifies the 
manner by which the Census Director determines the number of limited-English proficient (LEP) 
individuals: 

The Director of the Census determines limited English proficiency based upon 
information included on the long form of the decennial census. . . . The form requests 
that they respond to a question inquiring how well they speak English by checking one 
of the four answers provided — "very well," "well," "not well," or "not at all." The 
Census Bureau has determined that most respondents over-estimate their English 
proficiency and therefore, those who answer other than "very well" are deemed LEP. 
H.R. Rep. No. 102-655, at 6 (1992), reprinted in 1992 U.S.C.C.A.N. 766, 772. 

27. See Census — Language Use 2007, supra note 24, at 7 tbl.3. 

28. Census-Language Use 2000, supra note 25, at 4 tbl. 1 . 

29. Id. Non-English-language speakers are further concentrated in key areas of the country, 
particularly in states and localities that are entry points for immigrants. In 2007, ten states had over 
one million non-English-language speakers, led by California (14.4 million), Texas (7.4 million), 
New York(5.2 million), Florida (4.5 million), and Illinois (2.6 million). CENSUS — LANGUAGE USE 
2007, supra note 24, at 9 tbl. 4. Counties with high proportions of non-English-language speakers 
included large cities such as New York City, Chicago, and Los Angeles. Los Angeles County alone 



2010] LANGUAGE ASSISTANCE 167 



Many limited-English proficient individuals are non-citizens who are not yet 
eligible to vote, but significant blocs of voters — including both U.S. -born citizens 
and naturalized citizens — lack the requisite English skills needed to participate 
meaningfully in the electoral process. Congress has long recognized that many 
Puerto Ricans, who are American citizens by birth, have been educated in 
Spanish-dominant schools and face barriers in English-only electoral 
procedures. 30 According to 2000 census figures, over one-quarter of Puerto 
Ricans are limited-English proficient. 3 1 Similarly, many Pacific Islander groups, 
including Native Hawaiians and Guamanians, are citizens by birth, yet high rates 
of limited-English proficiency persist among these populations — approximately 
one in seven Pacific Islanders according to census data. 32 And among Alaska 
Natives and American Indians, who are also citizens by birth, significant 
numbers of the population are limited-English proficient; 33 moreover, Congress 
has recognized the importance of preserving Native American languages, and the 
use of native languages is strongly supported by federal policy. 34 



had over 2.5 million residents who were limited-English proficient in 2000; of these, 1.8 million 
were Latino and over 500,000 were Asian American. Asian Pac. Am. Legal Ctr. of S. Cal., L.A. 
Speaks: Language Diversity and English Proficiency by Los Angeles County Service 
Planning Area 6 (2008) [hereinafter APALC — L.A. Speaks], available at http://demographics. 
apalc.org/wp-content/uploads/2008/03/la-speaks-final-031908.pdf 

Studies of state and local data have also revealed high rates of limited-English proficiency 
among members of particular ethnic groups. See id. at 6-9 (presenting data on limited-English 
proficient populations in Los Angeles County); ASIAN Pac Am. Legal Ctr. OF S. Cal., 
California Speaks: Language Diversity and English Proficiency by Legislative District 
6-8 (2006), available at http://apalc.org/demographics/wp-content/uploads/2006/09/apalc_ 
californiaspeaks.pdf (presenting data on limited-English proficient populations in California). For 
instance, in Los Angeles County, among adults aged eighteen to sixty- four, 71% of Guatemalans, 
70% of Hondurans, 67% of Vietnamese, 66% of Cambodians, 66% of Salvadorans, 63% of 
Koreans, 55% of Chinese, 52% of Mexicans, and 49% of Armenians were limited-English 
proficient. APALC — L.A. Speaks, supra, at 8. 

30. See 42 U.S.C. § 1973b(e) (2006) (prohibiting English-only literacy tests for persons 
educated in "American-flag schools" where predominant classroom language was not English). 

3 1 . Roberto R. Ramirez, U.S. Census Bureau, We the People: Hispanics in the United 
States 10 (Dec. 2004), available at http://www.census.gov/prod/2004pubs/censr-l 8.pdf. 

32. PhilipM.Harris&NicholasA.Jones,U.S.CensusBureau,WethePeople: Pacific 
Islanders in the United States 1 1 (Aug. 2005), available at http://www.census.gov/prod/ 
2005pubs/censr-26.pdf 

33. According to 2000 census data, approximately 10% of American Indians and Alaska 
Natives spoke English less than very well and were therefore limited-English proficient. Stella 
U. Ogunwole, U.S. Census Bureau, We the People: American Indians and Alaska Natives 
in the United States 7 (Feb. 2006), available at http://www.census.gov/population/www/ 
socdemo/race/censr-2 8.pdf. Some groups have considerably higher rates of limited-English 
proficiency; for example, among Navajo speakers, one in four were limited-English proficient, 
while among Eskimo speakers, over 15% were limited-English proficient. Id. 

34. See Native American Languages Act of 1992, Pub. L. No. 102-524, 106 Stat. 3434 



168 INDIANA LAW REVIEW [Vol. 44:161 



While the federal immigration and naturalization laws have long contained 
English language requirements for gaining naturalized citizenship, the degree of 
English proficiency needed to qualify for citizenship is only a level of basic 
comprehension. 35 Informed and meaningful voting, particularly in states and 
localities that employ direct democracy mechanisms such as referenda and 
initiatives, may require considerably higher levels of English fluency. There are 
also important exceptions in the naturalization laws for long-term residents of the 
United States who are elderly; these individuals need not demonstrate knowledge 
of English as a prerequisite to naturalization. 36 Empirical data suggest that 
limited-English proficient elderly citizens are among the voters most in need of 
language assistance. 37 

Community-based surveys underscore the need for language assistance 
among limited-English proficient voters. In one multistate survey of voters 
conducted during the November 2008 election, data showed that high rates of 
limited-English proficiency persist among several groups and that many voters 
have strong preferences for language assistance. 38 In New York City, where the 
Act mandates assistance for multiple language minority groups, 62% of Chinese 
American voters surveyed in Brooklyn were limited-English proficient and 43% 
preferred voting with language assistance; in Queens, 75% of Korean American 
voters were limited-English proficient and 29% preferred voting with language 
assistance. 39 The survey also found that voters' needs and interest in language 
assistance were comparable in localities without mandated Act coverage. In 
Chicago (Cook County), 81% of Korean American voters were limited-English 
proficient and 43% preferred voting with language assistance; in New Orleans, 
63% of Vietnamese American voters were limited-English proficient and 45% 
preferred voting with language assistance. 40 



(codified as amended at 42 U.S.C. §§ 2991b-3, 2992d(e) (2006)). 

35. 8 U.S.C. § 1423(a)(1) (2006). 

36. The naturalization laws create exceptions for an applicant who is over the age of fifty and 
has resided in the U.S. as a lawful permanent resident for over twenty years, as well as for an 
applicant who is over the age of fifty-five and has resided in the United States for over fifteen years. 
Applicants need not demonstrate English proficiency, but they must still fulfill other requirements, 
including demonstrating a basic knowledge of American government and civics. Id. § 1423(b)(2). 

37. See APALC — L.A. Speaks, supra note 29, at 9. Among particular ethnic groups of 
seniors aged sixty-five or older in Los Angeles County, the proportions of individuals who were 
limited-English proficient were especially high; the groups with the ten highest percentages of 
limited-English proficiency were as follows: Taiwanese-93%, Vietnamese-88%, Cambodian-86%, 
Salvadoran-85%, Iranian-84%, Guatemalan-83%, Chinese-82%, Chinese (Non-Taiwanese)-8 1 %, 
Korean-81%,Armenian-78%. Id. 

3 8 . Glenn D. Magpantay, Asian Am. Legal Defense & Educ. Fund, Asian American 
Access to Democracy in the 2008 Elections 1 5 (2009) [hereinafter Asian American Access 
to 2008 Elections], available at http://aaldef.org/docs/AALDEF-AA-Access-to-Democracy- 
2008.pdf (survey focused on Asian American voters in eleven states and the District of Columbia). 

39. Id. 

40. Id. 



20 1 0] LANGUAGE ASSISTANCE 1 69 



The language assistance provisions of the Act cover many of the voters who 
fall within these clusters and categories, but numerous limited-English proficient 
voters do not receive assistance either because they do not trigger the Act's 
coverage or because they fall outside the Act's formal definitions of language 
minority groups. Cambodian Americans, for instance, lacked a sufficiently large 
population in Los Angeles County after the 2000 census to trigger section 203 
coverage, 41 while Arab Americans, Armenians, Iranians, Russians, and Haitians 
are among the many groups whose languages are simply not covered by the Act. 
The omissions are not oversights; the Act has particular goals and circumscribed 
procedures that extend coverage in only limited instances. 

B. Structural Remediation and Language Assistance 

In 1975, Congress amended the Voting Rights Act of 1965 in a number of 
significant ways to address discrimination against language groups. First, 
Congress recognized that denials of voting rights were not limited to black voters 
in the South and expanded the Act's basic prohibitions to include discrimination 
against members of "language minority" groups. The 1975 amendments ensured 
that individuals of Spanish heritage, as well as Asian Americans, American 
Indians, and Alaska Natives, were also protected by the Act. 42 Second, the 
amendments established a set of structural remedies, contained in sections 4(f)(4) 
and 203, to address longstanding discrimination against language minorities. 43 
Congress recognized that discrimination in education — including segregation and 
disparities in school financing and resources — had caused minority communities 



4 1 . Informational Hearing on the Federal Voting Rights Act: Hearing Before the S. Comm. 
Elections, Reapportionment & Const. Amendments Comm. 2005-06 Reg. Sess. 3-4 (Cal. 2005) 
(statement of Karin Wang, V.P. Programs, Asian Pac. Am. Legal Ctr.), available at 
http://www.sen.ca.gov/reapportionment/HearingsTestimony/KarinWangl2_5_2005.pdf. 

42. 42U.S.C. § 19737(c)(3) (2006); id. § 1973aa-la(e). The legislative history of the 1975 
amendments shows a clear congressional intent to extend the Act's coverage beyond anti-black 
racial discrimination. See S. Rep. No. 94-295, at 24-35 (1975), reprinted in 1975 U.S.C.C.A.N. 
774, 790-801. However, Congress chose to employ "language minority" status rather than the 
category of "national origin" as the operative language, which ultimately limited the Act's coverage 
to the four enumerated groups. Id. 

Both the Act's general anti-discrimination provisions under section 2, 42 U.S.C. § 1973, and 
its preclearance provisions under section 5, 42 U.S.C. § 1973c, were amended to include language 
minorities. Section 5 requires state and local governments with a long history of discrimination and 
depressed minority political participation to "preclear" any changes to their electoral procedures 
either through administrative review by the Department of Justice or a declaratory judgment by a 
three-judge panel of the U.S. District Court for the District of Columbia. Id. 

43. Section 4(e) of the original 1965 Act recognized the connection between English- 
language-proficiency and voting discrimination in the case of Puerto Rican voters, many of whom 
had been educated in Spanish-dominant educational environments. The Act now prohibits English- 
only literacy tests for "persons educated in American-flag schools in which the predominant 
classroom language was other than English." 42 U.S.C. § 1973b(e). 



1 70 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



throughout the nation to suffer from high rates of illiteracy, which was measured 
by failure to complete the fifth grade. In tandem with discrimination in the 
electoral process itself, educational inequalities and illiteracy had led to low rates 
of voter registration and voting by language minorities. Congress concluded that 
electoral procedures conducted only in English would therefore be inherently 
discriminatory and established requirements for translated voting materials, oral 
assistance, and other language-based remedies. 44 At the same time, Congress 
found that problems of discrimination and low political participation were not as 
severe among other populations and limited the scope of the Act's remedies to 
the four enumerated language minority groups. 45 

The persistence of discrimination against language minorities has led 
Congress to reauthorize sections 4(f)(4) and 203 multiple times, with the most 
recent reauthorization in 2006 extending the language assistance sections for an 
additional twenty-five years. 46 Section 4(f)(4) applies to a small number of 



44. Section 203(a) states: 

The Congress finds that, through the use of various practices and procedures, citizens 
of language minorities have been effectively excluded from participation in the electoral 
process. Among other factors, the denial of the right to vote of such minority group 
citizens is ordinarily directly related to the unequal educational opportunities afforded 
them resulting in high illiteracy and low voting participation. The Congress declares 
that, in order to enforce the guarantees of the fourteenth and fifteenth amendments to 
the United States Constitution, it is necessary to eliminate such discrimination by 
prohibiting these practices, and by prescribing other remedial devices. 

42 U.S.C. § 1973aa-la(a); see also id. § 1973b(f)(l) (documenting similar findings to justify 

section 4(f)(4)). 

45. The Senate Judiciary Committee considered the inclusion of other language groups but 
declined to do so because of the lack of evidence of substantial discrimination or depressed political 
participation for other groups, as well as because of significant differences in the histories of the 
four language minority groups compared to European immigrants. S. Rep. No. 94-295, at 31 
(1975), reprinted in 1975 U.S.C.C.A.N. 774, 797-98. The House also rejected amendments to the 
Voting Rights Act that would have added coverage for other language groups. 121 Cong. Rec. 
HI 6,898 (daily ed. June 4, 1975) (rejecting amendment of Rep. Biaggi); id. at HI 6,907 (daily ed. 
June 4, 1975) (rejecting amendment of Rep. Solarz). See generally JAMES THOMAS TUCKER, The 
Battle Over Bilingual Ballots 60-62 (2009). Since 1975, Congress has not added any new 
language groups to the Act's coverage. Id. at 62-64. 

46. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577. The House 
Judiciary Committee's report summarized its findings regarding ongoing discrimination against 
language minorities as follows: 

The continued need for bilingual support is reflected by: (1) the increased number of 
linguistically isolated households, particularly among Hispanic and Asian American 
communities; (2) the increased number of language minority students who are 
considered to be English language learners, such that students do not speak English well 
enough to understand the required curriculum and require supplemental classes; (3) the 
continued disparity in educational opportunities as demonstrated by the disparate impact 



20 1 0] LANGUAGE ASSISTANCE 1 7 1 



jurisdictions with longstanding histories of discrimination, 47 while section 203 
applies nationally through a variety of triggering formulas that cover multiple 
jurisdictions and language groups based on census data. Under one test, section 
203 requires language assistance in a state or political subdivision in which more 
than 5% of the voting-age citizens are members of a language minority group, are 
limited-English proficient, and have an illiteracy rate that exceeds the national 
illiteracy rate. 48 Under a similar test, the 5% trigger is replaced with a numerical 
benchmark requiring that the language group have over 10,000 limited-English 
proficient voting-age citizens in a jurisdiction. 49 

The section 203 formulas recognize the relationships among education, 
language ability, and voting, as well as Congress's conclusion that discrimination 
against language minorities is a widespread problem that requires no 
particularized showing of past discrimination in a covered jurisdiction. The 
formulas also illuminate the cost-benefit calculations that are inherent in 
providing language assistance to limited-English proficient voters. Minority 
populations must be sufficiently large — satisfying either a 5% population trigger 



that budget shortfalls have on language minority citizens, and the continued need for 

litigation to protect English language learners; and (4) the lack of available literacy 

centers and English as a Second Language programs. 
H.R. Rep. No. 109-478, at 29 (2006), available at 2006 WL 1403199. 

Support for the language assistance provisions of the Voting Rights Act has not, however, 
been universal. In 2006, an amendment offered by Representative Steve King to reauthorization 
legislation would have eliminated section 203 of the Act, but it was defeated by a vote of 238-185 
in the House of Representatives. See The U.S. Congress Votes Database, Wash. Post, 
http://projects.washingtonpost.eom/congress/109/house/2/votes/372 (last visited Oct. 17, 2010). 

47. Section 4(f)(4) prohibits English-only materials and requires language assistance in states 
and political subdivisions where: (1) over 5% of the voting-age citizens were, on November 1, 
1 972, members of a language minority group; (2) registration and election materials were provided 
only in English on that date; and (3) less than 50% of the voting-age citizens were registered to vote 
or voted in the 1972 presidential election. 42U.S.C. § 1973b(f) (2006); id. § 1973b(b). By using 
information from 1972, the section focuses on areas with more serious histories of discrimination. 
In addition, jurisdictions that satisfy the triggering formula must obtain preclearance of changes in 
election procedures under section 5 of the Act. 42 U.S.C. § 1973c. 

48. 42 U.S.C. § 1973aa-la(b)(2)(A). Congress amended section 203 in 1982 to require that 
a language minority group also be limited-English proficient in order to satisfy the statistical 
benchmark, which actually led to a reduction in the total number of eligible jurisdictions. See H.R. 
Rep. No. 102-655, at 7 (1992), reprinted in 1992 U.S.C.C.A.N. 766, 773. 

49. 42 U.S.C. § 1973aa-la(b)(2)(A)(i)(II). The numerical figure was designed to cover 
language groups with significant numbers who might not trigger the 5% test because they reside 
in a high-population county. The 1992 amendments to the Act expanded section 203 's coverage 
to include political subdivisions that contain all or any part of an American Indian reservation in 
which over 5% of the residents are members of a single language group, are limited-English 
proficient, and have an illiteracy rate exceeding the national average. Act of Aug. 26, 1992, Pub. 
L. No. 102-344, § 2, 100 Stat. 921 (codified as amended at 42 U.S.C. § 1973aa-la(b)(2)(A)(i)(III) 
(2006)). 



1 72 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



or a 10,000-citizen population trigger — in order to justify the expense to local 
government of providing language assistance. The benefits to voters whose 
group populations fall below the numerical triggers are not adequately justified, 
at least in Congress's view, by the costs of providing translated election materials 
and oral assistance to those voters. 

Sections 4(f)(4) and 203 reach a wide range of states, counties, American 
Indian reservations, and language groups. Based on 2000 census data, over 500 
jurisdictions are covered by one or both provisions of the Act, and nearly fifty 
jurisdictions must provide assistance in more than one language. 50 Among the 
most common language groups covered are speakers of Aleut, Apache, Chinese, 
Eskimo, Japanese, Korean, Navajo, Sioux, Spanish, Tagalog (Filipino), and 
Vietnamese. 51 Nationally, over four million limited-English proficient voters 
were protected by the language assistance provisions in accordance with the 
federal government's 2002 determinations of coverage; nearly 82% of these 
voters spoke Spanish, and nearly 17% spoke an Asian language. 52 

Regulations to enforce the Act have also generated an array of language 
assistance practices that apply to materials sent by mail, voter registration, public 
notices, polling place activities, and publicity; 53 various practices include forms 
of targeted oral assistance 54 and translations of written materials such as official 
ballots, sample ballots, informational materials, and petitions. 55 Compliance 
litigation by the Department of Justice has added to the regulatory mandates, and 
common remedies contained in court orders and consent decrees include 
requirements that localities develop outreach plans, hire bilingual poll workers 
and a language-assistance coordinator, and create a community advisory body to 
work with local officials. 56 



50. See TUCKER, supra note 45, at 1 1 4- 1 5 (505 political subdivisions covered by one or both 
provisions). 

5 1 . See Voting Rights Act Amendments of 1 992, Determinations Under Section 203, 67 Fed. 
Reg. 48,87 1 , 48,872-922 (July 26, 2002). 

52. See Tuck.fr, supra note 45, at 1 26 (total of 4,026,38 1 limited-English proficient voters 
covered (Spanish (3,290,018), Asian American (672,750), American Indian (56,679), and Alaska 
Native (6934)). 

53. 28C.F.R. § 55.18(2006). 

54. Id. § 55.20. 

55. Id. § 55.19(a); see generally U.S. Gov't ACCOUNTABILITY OFFICE, GAO-08-182. 

Bilingual Voting Assistance: Sn k ted Jurisdictions' Strategies for Identifying Needs 
and Providing Assisiancf (2008), available at http://www.gao.gov/new.items/d08182.pdf 
(overview of procedures adopted in a sample of covered jurisdictions). 

56. See, e.g. t Memorandum of Agreement, United States v. Riverside Cnty. (CD. ( al Jan. 
26, 2010) (No. 2:10-CV-01059), available at http://www.justice.gov/crtyvoting/sec_203/ 
documents/riverside moa2.pdf; Agreement and Order, United States v. City of Walnut (CD. Cal. 
Nov. 9, 2007) (No. 2:07-cv-02437-PA-VBK), available at http://www.justice.gov/crt/voting/ 
sec 203/documents/walnut cd.pdf; Settlement Agreement. United States v. City of Phila. ( E.D. Pa. 
Apr. 26, 2007) (No. 06-4592). available at http://www.justice.gov/crt/voting/sec_203/documents/ 
phila settlement.pdf; Order, United States v. City of Bos. (D. Mass. Oct. 18. 2005) (No. 1 :05-cv- 



20 1 0] LANGUAGE ASSISTANCE 1 73 



Although there are persistent problems arising from flawed implementation 
of the law by covered jurisdictions — including inadequate training of poll 
workers, mistranslations of ballot language and candidate names, and insufficient 
assistance at poll sites 57 — there have been strong, positive effects on voter 
participation because of the language assistance provisions. 58 During the 2006 
reauthorization of the Act, for example, the House Judiciary Committee Report 
concluded that "increases in language minority citizen registration and turnout 
rates are most significant in jurisdictions that are in compliance with Section 
203 's election assistance requirements" and that "enforcement of Section 203 has 
resulted in significantly narrowed gaps in electoral participation." 59 

Notwithstanding the impact of the language assistance provisions, there are 
inherent limits in the Act regardless of whether jurisdictions are in full 
compliance with the law. First, the inflexibility of the formulas that trigger 
coverage makes the congressional remedies incomplete because the statistical 
formulas operate like toggle switches to initiate language assistance within a 
jurisdiction. If a group satisfies a statistical benchmark — either the 5% figure or 
the 1 0,000 numerical figure — then the full array of language assistance mandates 
go into effect; however, if a benchmark is not satisfied, then no federal mandates 
are deployed at all. If a language minority population lacks a critical mass in a 
jurisdiction to trigger coverage because of its size, then the Act does not require 
even limited or partial assistance. 60 

Second, because the "language minority" definition has been tethered to 
congressional findings of discrimination and reduced political participation 
among the four enumerated groups, assistance for all other language groups falls 
outside the coverage of the Act. Even though there has been recent evidence 
showing that language groups such as Arab Americans 61 and Haitian Americans 62 



1 1 598-WGY), available at http://www.justice.gov/crt/ voting/sec_203/documents/boston_cd2.pdf. 

57. See, e.g., James Thomas Tucker & Rodolfo Espino, Government Effectiveness and 
Efficiency? The Minority Language Assistance Provisions of the VRA, 12 TEX. J. C.L. & C.R. 163 
(2007); Asian American Access, supra note 38, at 4; Nat'l Asian Pac. Am. Legal Consortium, 
Sound Barriers: Asian Americans and Language Access in Election 2004 (2005), available 
at http://65.36.162.215/files/sound_barriers.pdf. 

58. See TUCKER, supra note 45, at 229-3 1 . 

59. H.R.REP.NO. 109-478, at 12 (2006), available at 2006 WL 1403199 (internal citations 
and quotations omitted). 

60. A related problem is that the Act's triggering formulas may not take into account the 
growth of local populations between official census data collections. The Act was amended in 2006 
to require data from the U.S. Census Bureau's American Community Survey, which are to be 
applied every five years to determine section 203 coverage; prior to 2006, data for determining 
coverage was collected through the decennial census. 42 U.S.C. § 1973aa-la(b)(2)(A) (2006). 
Nevertheless, federal data collected at five-year intervals may not reflect the latest demographic 
changes in faster- growing immigrant communities. 

61. See Jocelyn Benson, Language Protections for All? Extending and Expanding the 
Language Protections of the Voting Rights Act, in VOTINGRIGHTS ACT REAUTHORIZATION OF2006: 
Perspectives on Democracy, Participation, and Power 327 (Ana Henderson ed., 2007); 



1 74 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



have suffered comparable discrimination and exhibit depressed levels of political 
participation, Congress has declined to add any new groups to the language 
minority categories since 1975. These and other shortcomings in the language 
provisions of the Act 63 seem unlikely to be revised in the immediate future 
because Congress's most recent reauthorization of the Act was in 2006, and 
many of these problems surfaced in committee hearings and floor debates but 
were ignored in the final legislation. 64 

C. Additional Language Assistance: Anti-Discrimination and 
Accommodation Models 

The Act offers language rights protections through two other provisions: 
section 2 and section 208. Section 2 is the Act's primary vehicle for anti- 
discrimination litigation and differs from the Act's structural language assistance 
remedies in several ways: it is a permanent provision of the Act, applies 
nationwide, and does not employ a statistical trigger as a prerequisite for 
coverage. 65 While section 2 protects members of language minority groups based 
on their group status — in other words, because they are of Spanish heritage or are 
Asian American, American Indian, or Native Alaskan — section 2 does not 
prohibit discrimination on the basis of limited-English ability or language usage 
per se. Section 2 has been employed, nonetheless, in recent anti-discrimination 
cases to obtain language-based remedies designed to assist limited-English 



Brenda Fathy Abdelall, Note, Not Enough of a Minority?: Arab Americans and the Language 
Assistance Provisions (Section 203) of the Voting Rights Act, 38 U.MICH. J.L.REFORM 91 1 (2005). 

62. See JoNel Newman, Unfinished Business: The Case for Continuing Special Voting 
Rights Act Coverage in Florida, 61 U. MIAMI L. Rev. 1, 32-36 (2006). 

63. See generally Jocelyn Friedrichs Benson, jSu Voto Es Su Voz! Incorporating Voters of 
Limited English Proficiency into American Democracy, 48 B.C. L. REV. 251 (2007) (discussing 
multiple weaknesses in language assistance provisions). 

64. The language assistance provisions are also circumscribed because of constitutional limits 
on the powers of Congress to legislate remedial action. Recent U.S. Supreme Court case law has 
checked congressional authority under section 5 of the Fourteenth Amendment to ensure that 
legislative responses are fully documented and form a congruent and proportional response to 
constitutional violations. See Bd. of Trs. of Univ. of Ala. v. Garrett, 53 1 U.S. 356, 365 (2001); City 
of Boerne v. Flores, 521 U.S. 507, 530 (1997); cf Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 129 
S. Ct. 2504 (2009) (declining to review constitutionality of provisions in section 5 of the Voting 
Rights Act). While the fact finding predicates for Congress's most recent reauthorizations of 
sections 4(f)(4) and 203 should readily satisfy constitutional standards, see James Thomas Tucker, 
The Battle Over "Bilingual Ballots "Shifts to the Courts: A Post-Bocrne Assessment of Section 203 
of the Voting Rights Act, 45 Harv. J. ON LEGIS. 507 (2008), adding coverage to new groups or 
extending remedies beyond documented needs could raise constitutional questions should Congress 
further amend the Act. 

65. See Hernandez v. Woodard, 714 F. Supp. 963, 968-69 (N.D. 111. 1989) (concluding that 
section 2 claims on behalf of language minorities need not be coupled with section 203 's statistical 
prerequisites). 



2010] LANGUAGE ASSISTANCE 175 



proficient voters. 66 

In United States v. City of Hamtramck, for instance, the Department of 
Justice asserted multiple section 2 violations arising from racial discrimination 
perpetrated by a government-approved citizen group who challenged the 
citizenship and voter qualifications of Arab American and darker-skinned Asian 
American voters. 67 During the course of the November 1999 election in 
Hamtramck, Michigan, over forty voters were confronted on the basis of physical 
appearance or because they had "Arab-sounding" names. As a core remedy, the 
Hamtramck consent decree required that officials be trained on proper 
procedures for addressing voter intimidation and challenging voter qualifications. 
The consent decree went further, however, and mandated that bilingual election 
inspectors be hired to assist in future elections and that notices be prepared in 
Arabic and in Bengali to inform voters about the new election practices. 68 

The development of language-based remedies in cases like United States v. 
Hamtramck suggests that section 2 could become a broader source of assistance 
for limited-English proficient voters even when the basis for the discrimination 
is race or membership in a language minority group. Section 2 also carries the 
advantage of being applicable to any jurisdiction, regardless of the size of a 
group's population within the jurisdiction. However, section 2 litigation is 
limited by the infrequency of cases that are filed, and litigation-based remedies 
have inherent constraints because they require specific findings of discrimination 
and do not extend beyond the particular defendants bound by the case. 

Section 208 differs from both section 2 and the Act's structural language 
assistance provisions because it can be invoked by any limited-English proficient 
voter and is not confined to the Act's definition of "language minorities." 
Section 208 states in part that "[a]ny voter who requires assistance to vote by 
reason of blindness, disability, or inability to read or write may be given 
assistance by a person of the voter's choice." 69 Originally designed as an 
accommodation measure for disabled voters, this section has been applied to 
limited-English proficient voters who require assistance to understand an 
English-only ballot. 70 Section 208 imposes no affirmative obligations on 



66. See, e.g., Complaint, United States v. Salem Cnty., No. l:08-cv-03726-JHR-AMD (D. 
N.J. July 24, 2008); Amended Complaint, United States v. City of Phila., No. 2:06-4592 (E.D. Pa. 
April 26, 2007); Complaint, United States v. Long Cnty., No. CV206-040 (S.D. Ga. Feb. 8, 2006); 
Complaint, United States v. City of Bos., No. 05- 1 1 598 WGY (D. Mass. July 29, 2005); Complaint, 
United States v. City of Hamtramck, No. 00-73541 (E.D. Mich. Aug. 4, 2000). 

67. Complaint, Hamtramck, No. 00-73541. 

68. Consent Order and Decree, Hamtramck, No. 00-73541 . 

69. 42 U.S.C. § 1973aa-6 (2006). Section 208 contains an exception precluding an assistor 
who is "the voter's employer or agent of that employer or officer or agent of the voter's union." 
Id 

70. The legislative history of section 208 highlights some of the parallels between disability 
and limited-English proficiency: 

Certain discrete groups of citizens are unable to exercise their rights to vote without 
obtaining assistance in voting including aid within the voting booth. These groups 



1 76 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



localities to provide language assistance, but it does allow an enforcement action 
if election officials impede or deny a voter's access to an assistor. 71 

Section 208 has the potential to be a far-reaching mechanism for enforcing 
language rights under the Voting Rights Act because it applies nationwide and 
enables any limited-English proficient voter to receive assistance in voting. 72 
Section 208 also allows personalized aid because the voter determines who will 
provide the assistance and what will be needed to cast a meaningful vote. A 
major problem with the law, however, is that it establishes no standards on the 
quality of assistance provided to the voter, nor does it impose significant 
obligations on federal, state, or local governments. The costs are borne almost 
entirely by the private assistor and the affected voter, who also carries the 
responsibility of arranging the assistance in the first place. Election officials 
primarily assume costs for training staff to prevent violations of the law, such as 
denying or interfering with assistors; localities bear no real costs in providing aid 
to voters. 

Read together, the various sections of the Voting Rights Act offer a mix of 
language rights tools with significant gaps — both in theory and in practice. The 
"language minority" definition delimits the structural remedies of the Act, but 
basic barriers persist for voters whose language groups fail to satisfy the Act's 
triggers or who fall outside the basic definitions needed for coverage. Litigation 
under section 2 offers only piecemeal remedies, and the personal assistance 



include the blind, the disabled, and those who either do not have a written language or 
who are unable to read or write sufficiently well to understand the election material and 
the ballot. Because of their need for assistance, members of these groups are more 
susceptible than the ordinary voter to having their vote unduly influenced or 
manipulated. As a result, members of such groups run the risk that they will be 
discriminated against at the polls and that their right to vote in state and federal elections 
will not be protected. 
S. Rep. No. 97-417, at 53 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 240, 1982 WL 25033. 

71. See, e.g., Consent Decree, Judgment, and Order, United States v. Fort Bend Cnty., No. 
4:09-cv-1058 (S.D. Tex. Apr. 13, 2009); Settlement Agreement, City ofPhila., No. 06-4592; 
Revised Agreed Settlement Order, United States v. City of Springfield, No. 06-30 1-23-MAP (D. 
Mass. Sept. 13, 2006); Consent Decree, Judgment, and Order, United States v. Brazos Cnty., No. 
H-06-2165 (S.D. Tex. June 27, 2006); Order, United States v. Berks Cnty., No. 03-CV-1030 (E.D. 
Pa. Aug. 20, 2003); United States v. Miami-Dade Cnty., No. 02-21698 (S.D. Fla. June 7, 2002). 
In United States v. Miami-Dade County, for example, Haitian American voters who needed 
assistance in Creole were denied the use of assistors, and even when assistance was allowed, it was 
often limited to demonstrations of voting procedures outside the voting booth. Consent Order at 
2, Miami-Dade Cnty., No. 02-21698. The consent decree's requirements included training 
programs for poll workers, voter education policies, and the employment of Creole-speaking 
election employees in targeted precincts. Id. at 5. Haitian Americans are covered by section 208 
even though they fall outside the Act's formal definition of language minorities. 

72. See Terin M. Barbas, Note, We Count Too! Ending the Disenfranchisement of Limited 
English Proficiency Voters, 37 Fla. St. U. L. Rev. 189, 204-08 (2009) (suggesting that amending 
section 208 would provide an optimal solution to meeting language assistance needs). 



2010] LANGUAGE ASSISTANCE 177 



available to voters under section 208 offers a weak form of accommodation that 
relieves local election officials of any significant role. As the next Part 
illustrates, several states and local governments have taken a more active role in 
providing language assistance and have implemented measures to bridge the gaps 
in federal law. 

II. State and Local Language Assistance Policies 

Because of the constraints of the Act, many limited-English proficient voters 
continue to face language barriers in the electoral process. A number of state and 
local governments have developed language access policies to address voter 
needs, but the responses vary widely. Some policies simply require compliance 
with the Act 73 or parallel federal law, 74 while others have gone beyond the Act's 
requirements to extend assistance to multiple language groups. State and local 
policies have arisen in a variety of contexts: as responses to federal litigation 
under the Act, as additions to extant requirements under section 203, and as 
policy initiatives where few or no federal mandates are in place. 

A. Federal Litigation and Local Remedies 

A number of recent lawsuits have served as catalysts for local policies that 
extend language assistance beyond the requirements of the Act. For instance, 
United States v. San Diego County involved multiple violations of section 203 
arising out of San Diego County's inadequate language assistance to Latino and 
Filipino American voters, which included "failing to provide an adequate pool 
of bilingual poll officials . . . failing to make available . . . election-related 
announcements, instructions, and notices at election sites . . . [and] failing to 
translate . . . election-related information" on the registrar of voters' website. 75 
The settlement between the federal government and the county included a 
common set of remedies in section 203 litigation: translating election materials, 



73 . See, e.g. , Fla. Stat. Ann. §101.2515 (West, Westlaw through 20 1 2d Reg. Sess.); La. 
Rev. Stat. Ann. § 18: 106(D) (West, Westlaw through 2009 Reg. Sess.); R.I. Gen. Laws Ann. § 
17-19-54 (West, Westlaw through Ch. 319 of Jan. 2010 Sess.); S.D. CODIFIED Laws § 12-3-6 
(2010); see generally Brian J. Sutherland, The Patchwork of State and Federal Language 
Assistance for Minority Voters and a Proposal for Model State Legislation, 65 N. Y.U. Ann. Surv. 
Am. L. 323, 339-45 (2009). 

74. Several state laws offer voter assistor guarantees comparable to the provisions contained 
in section 208 of the Voting Rights Act. See, e.g., Colo. REV. Stat. § 1-7-1 12(l)(a) (LEXIS 
through 2010 legislation); Ga. Code Ann. § 2 1 -2-409(a) (20 1 0); 1 III. Comp. Stat. Ann. 5/17-14 
(West, Westlaw through 2010 Reg. Sess.); Kan. Stat. Ann. § 25-2909(a) (2000 & Supp. 2009); 
Mass. Gen. Laws Ann. ch. 54, § 79 (West, Westlaw through Ch. 347 of 2010 2d Ann. Sess.); Tex. 
Elec. Code Ann. § 64.031 (West, Westlaw through 2009 legislation); Wis. Stat. Ann. § 
6.82(2)(a) (West, Westlaw through 2009 Act 406); see generally Sutherland, supra note 73, at 346- 
51. 

75. Complaint at 4, United States v. San Diego Cnty., No. 04-CV-1273IEG (S.D. Cal. June 
23, 2004), available at 2004 WL 5690558. 



178 INDIANA LAW REVIEW [Vol. 44:161 



hiring bilingual poll workers, distributing multilingual information, hiring a 
language-assistance coordinator, and creating a community-based advisory body 
for each language. 76 

Particularly noteworthy in the San Diego County case, however, was the 
voluntary inclusion of Vietnamese language assistance in the consent decree, 
paralleling the terms of the Spanish and Filipino requirements imposed on San 
Diego County. The memorandum of agreement stated that "the 2000 Census also 
showed a Vietnamese-speaking voting age population with limited-English 
proficiency of [9915], or only 85 below the 10,000 person statutory threshold, 
and San Diego County wishes to serve this growing community." 77 Immediately 
after the county's implementation of the settlement agreement, the effects of the 
language assistance were significant: Spanish and Filipino registration increased 
by more than 2 1 % during the six-month period after the resolution of the lawsuit, 
and Vietnamese registration increased by more than 37%. 78 Moreover, even 
though the settlement agreement expired on March 31, 2007, and San Diego 
County was no longer obligated to provide Vietnamese language assistance, 
election officials continued to provide assistance in all three languages. 79 

In United States v. City of Boston, the Department of Justice asserted 
multiple violations of the Act and other federal laws by city election workers: 
treating limited-English proficient Latino, Chinese American, and Vietnamese 
American voters disrespectfully; refusing to permit voters to be aided by an 
assistor; improperly influencing, coercing, or ignoring voters' ballot choices; and 
refusing or failing to provide provisional ballots. 80 The complaint alleged 
violations of section 203, but only with respect to Spanish-speaking voters; the 
Chinese and Vietnamese populations were not large enough to trigger section 203 
coverage. 81 Nevertheless, the remedies in the consent decree included guarantees 



76. Memorandum of Agreement at 2- 1 0, San Diego Cnty. , No. 04-CV- 1 273IEG. 

77. Id. at 2. 

78. See H.R. Rep. No. 109-478, at 12 (2006), available at 2006 WL 1403199. Anecdotal 
evidence also supports the importance of language assistance in promoting voter participation. A 
former chief of the Department of Justice's voting section relayed the following anecdote from San 
Diego County: "A Vietnamese voter, thrilled to find a Vietnamese-speaking poll worker, exclaimed 
that 'America is the greatest country in the world! I'm going to tell everyone!' The voter later 
brought more Vietnamese voters to the polls." John Tanner, Federal Enforcement of the Language 
Assistance Provisions, in TUCKER, supra note 45, at 317-18. 

79. Because of the numbers (the 2000 census showed the Vietnamese population just a few 
citizens short of the 10,000 benchmark, and the population is highly likely to satisfy the benchmark 
under 2010 census data), the county may simply have been anticipating the inevitable. However, 
the timing of the settlement, occurring eight years prior to the imposition of federal mandates in 
2012, suggests that the county was engaging in good faith efforts to satisfy local goals of serving 
the Vietnamese American community, and not simply to comply early with federal law. 

80. Complaint at 4-6, United States v. City of Bos., 497 F. Supp. 2d 263 (D. Mass. 2007) 
(No. 05-11 598-WGY). 

8 1 . Chinese American voting-age citizens in Boston numbered 9825 ; Vietnamese American 
voting-age citizens numbered 4220. Id. at 3. 



2010] LANGUAGE ASSISTANCE 179 



of language assistance to all three groups. 82 The inclusion of Vietnamese 
language assistance was especially notable because the target population of 
Vietnamese Americans was only 4220, less than half the number needed to 
trigger section 203 coverage. 

The City of Boston litigation parallels the San Diego County litigation in 
several ways, with a variety of language assistance remedies that expanded the 
city's efforts to recruit bilingual Chinese and Vietnamese poll workers for 
targeted precincts. Implementation of multilingual assistance has been more 
convoluted in Boston, however, because of state and local politics following the 
expiration of the consent decree in 2008. In 2007, both the Department of Justice 
and community groups advocating multilingual assistance supported the 
translation of the candidates' names on ballots into Chinese through 
"transliteration," a procedure by which names are converted phonetically from 
their alphabetic spelling to Chinese characters. 83 The Massachusetts Secretary 
of the Commonwealth opposed transliteration, however, and a federal court 
declined to rule that transliteration was required under the settlement 
agreement. 84 The Boston City Council later voted to pursue a home-rule petition 
to continue Chinese and Vietnamese language assistance in federal and state 
elections. 85 State legislation to implement the home-rule petition was eventually 
enacted in 2010, establishing requirements that the City of Boston provide 
Chinese assistance (including transliteration) and Vietnamese assistance 
beginning in 201 1. 86 

B. Near-Coverage and Anticipatory Compliance 

The City of San Diego and City of Boston lawsuits illustrate how the 
institutional power of the Act, coupled with federal enforcement and local 
advocacy, can lead jurisdictions to expand language assistance efforts. 87 Short 



82. Memorandum of Agreement and Settlement at 3, City of Bos., 497 F. Supp. 2d 263. 

83. See Frank Phillips, Ballot Translations Could Mean Too Much, BOS. GLOBE, June 26, 
2007, at Al ; Andrea Stone, Candidates Lost in Chinese Translation, USA TODAY, July 1 1 , 2007, 
at A3. 

84. See Order, City of Bos., 497 F. Supp. 2d 263; Frank Phillips, Candidates' Names Won 7 
Be Trans liter ated-Dispute Centered on Chinese Voters, Bos. GLOBE, Aug. 8, 2007, at B2. 

85. Maria Sacchetti, Fresh Fight Over Bilingual Ballots; Council to Pursue State Law 
Ordering Names in Chinese, Bos. GLOBE, May 14, 2008, at Bl. 

86. H.R. 4880, 186th Leg., 2d Ann. Sess. (Mass. 2010). 

87. A parallel development is the maintenance of language assistance by a jurisdiction even 
when it is no longer required to provide assistance under federal law. See U.S. Gen. Accounting 
Office, GAO/GGD-97-8 1 , Bilingual Voting Assistance: Assistance Provided and Costs 
1 5 (1 997), available at http://www.gao.gOv/archive/l 997/gg9708 1 .pdf. The City and County of 
San Francisco, for example, was first required to offer assistance in Chinese and Spanish in the 
1970s, but it was not obligated under federal law to provide assistance in either language during 
the 1 980s or in Spanish during the 1 990s. Election officials continued to provide both Chinese and 
Spanish language assistance — including trilingual ballots — throughout the 1980s and 1990s. Id. 



1 80 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



of litigation, a number of local governments have initiated coverage for large and 
politically influential language groups who missed coverage under the Act in one 
census cycle but were likely to be covered in the future. For example, during the 
1990s, California's Santa Clara County was required under section 203 to 
provide assistance in Spanish, but in no other minority languages, even though 
the county contained one of the nation's largest concentrations of Southeast 
Asian immigrants and sizable populations of other Asian American groups. 
Assistance to Vietnamese American voters was a particular concern because the 
Vietnamese American figure for targeted voting-age citizens fell just short of the 
10,000 numerical benchmark needed to trigger section 203 coverage. 

Advocacy by local civil rights groups led to San Jose County to deploy 
multiple stages of language assistance. In 1993, the county voluntarily printed 
ballots translated into Vietnamese and mailed bilingual ballots to all voters who 
indicated that they had been born in Vietnam. 88 Following an assessment of 
needs and recommendations by a citizen advisory committee, 89 as well as the 
acknowledgement of "a swell of new citizens from mainland China, Hong Kong 
and Taiwan during the [previous] two years, and requests by those immigrants," 
the registrar of voters added Chinese language translations in 1996. 90 After the 
2000 census, Santa Clara County was legally mandated under section 203 to 
provide assistance in Spanish, Vietnamese, Chinese, and Tagalog. 

Similar developments transpired in Los Angeles County in the 1990s. 
Beginning in 1992, Los Angeles County was required to offer assistance in five 
languages: Chinese, Japanese, Spanish, Tagalog, and Vietnamese. The Korean 
language, however, was not included because the Korean American illiteracy 
rate — measured by completion of a fifth-grade education, not by English 
language proficiency — did not exceed the national average. The hurdle of a 
lower illiteracy rate was especially vexing for the local community because the 
target population of Korean Americans in Los Angeles County was more than 
double the number necessary to trigger section 203. 91 Unlike Santa Clara 
County, however, efforts to win voluntary assistance in Los Angeles County 
lasted several years, even though Korean Americans had a strong base of 
community advocates and numerous surveys demonstrated high rates of need and 
interest in Korean language assistance. 92 The county board of supervisors 
ultimately voted in September 1998 to begin printing election materials in 



After the 2000 census data determinations, both Chinese and Spanish were mandated under section 
203 in San Francisco. 

88. See Glenn D. Magpantay, Asian American Access to the Vote: The Language Assistance 
Provisions (Section 203) of the Voting Rights Act and Beyond, 1 1 ASIAN L.J. 3 1, 52 (2004). 

89. See id. 

90. Edwin Garcia, Demand Rising for Non-English Voting Materials, San Jose Mercury 
News, Nov. 5, 1996, at 4B (quoting Elma Rosas Martinez, Spokeswoman, Office of Santa Clara 
Cnty. Registrar of Voters). 

91. Magpantay, supra note 88, at 50 (noting that 1990 census data showed that a target 
population of 21,61 1 Korean American citizens resided in Los Angeles County). 

92. Id. 



2010] LANGUAGE ASSISTANCE 181 



Korean. 93 After the 2002 determinations of section 203 coverage, Los Angeles 
County was legally mandated to provide assistance in Korean. 

Community efforts to gain voluntary assistance, however, are not always 
entirely successful. In 1995, the New York City Board of Elections agreed in 
response to local advocacy efforts to begin adding Korean language interpreters 
at selected precincts in Queens. 94 Nonetheless, the board declined to add written 
translations of materials into Korean. Despite strong community support for 
expanded language assistance, the board even resisted offers by Korean 
American community groups to help translate basic materials such as voter 
registration forms and voting machine instructions. A full complement of 
Korean language assistance in Queens was only added after the 2002 
determinations of section 203 coverage. 

C. State and Local Policy Initiatives 

Responding to community advocacy and the growth of immigrant 
populations, several states and cities have adopted language assistance policies 
that go beyond the coverage limits of the Act. States, counties, and larger cities 
typically have multiple language groups that receive varying levels of assistance 
based on the size of the language group, whereas smaller cities and suburbs may 
have immigrant enclaves composed of one or two ethnic groups requiring 
focused assistance. A number of local policies have concentrated on providing 
voter registration forms and other basic informational materials, which are 
available in print and on websites. Some localities have gone further by offering 
a range of services, including the translation of ballots and the recruitment of 
bilingual poll workers to assist limited-English proficient voters in targeted 
precincts. 

1. State Laws and Practices . — A number of states have adopted laws and 
policies that are more generous than the Act in extending assistance to language 
groups. 95 Maine, for instance, offers ballot instructions in French to voters who 
request the translated materials from local election officials. 96 Over 5% of 
Maine's population speaks French, and the state has a history of past 
discrimination involving Francophone immigrants from Canada. 97 Other states 
offer assistance based on statistical formulas that trigger coverage at a lower 
level than section 203 of the Act. In California, state law requires that in 
counties where 3% of the voting-age citizens "lack sufficient skill in English to 
register without assistance," county officials must make reasonable efforts to 



93. Supervisors Move to Publish Voter Booklets in Korean, L.A. TIMES, Sept. 16, 1998, at 
4B. 

94. See Magpantay, supra note 88, at 52. 

95. See Sutherland, supra note 73, at 352-62. 

96. See Me. Rev. Stat. Ann. tit. 21 -A, § 603(5) (West, Westlaw through 2009 2d Reg. 
Sess.). 

97. See Pam Belluck, Long Scorned in Maine, French Has Renaissance, N.Y. TIMES, June 
4, 2006, at 1.26. 



1 82 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



recruit voting registrars who are fluent in the language. 98 A similar trigger 
applies to the recruitment of bilingual election officials for non-English-speaking 
citizens who need assistance in voting." In North Carolina, which currently has 
no section 203 coverage within the state, any county or municipality whose 
Latino population is at least 6% of the population must print and distribute 
Spanish language ballot instructions. 10 ° The statistical trigger is notably generous 
because it is based on the total population of Latinos in a county or municipality, 
not just the population of limited-English proficient voting-age citizens. 

Extended assistance has also been legislated through more expansive 
definitions of language groups than the Act's definition of "language 
minority." 101 For example, in the District of Columbia, which currently has no 
section 203 obligations, a broader definition of "non-English-speaking person" 
is employed to include anyone "whose native speaking language is a language 
other than English, and who continues to use his or her native language as his or 
her primary means of oral and written communication." 102 The District goes on 
to require written language assistance in election wards where non-English- 
speaking persons are 5% or more of the voting population, and it allows the D.C. 
Board of Elections and Ethics to establish language assistance in wards with 
lower percentages of non-English-speaking persons. 103 

As matters of agency practice, secretaries of state and other state election 
administrators have voluntarily offered basic informational services and materials 
in non-English languages. California's secretary of state, for example, offers 



98. Cal. Elec. Code § 2103(c)-(d) (2009). The subsections state in pertinent part: 

(c) It is also the intent of the Legislature that non-English-speaking citizens, like all 
other citizens, should be encouraged to vote. Therefore, appropriate efforts should be 
made to minimize obstacles to registration by citizens who lack sufficient skill in 
English to register without assistance. 

(d) Where the county elections official finds that citizens described in subdivision (c) 
approximate 3 percent or more of the voting age residents of a precinct, or in the event 
that interested citizens or organizations provide information which the county elections 
official believes indicates a need for registration assistance for qualified citizens 
described in subdivision (c), the county elections official shall make reasonable efforts 
to recruit deputy registrars who are fluent in a language used by citizens described in 
subdivision (c) and in English. 

99. Id. § 12303(b)-(c). 

100. N.C. Gen. Stat. § 163-165.5A (LEXIS through 2009 Reg. Sess.). 

101. See, e.g., Colo. Rev. Stat. § 1-2-202(4) (LEXIS through 2010 legislation) (requiring 
the county clerk and recorder to recruit bilingual staff members if 3% trigger for non-English- 
speaking electors is met); D.C. Code § 1-1031.01 (2010) (defining "non-English-speaking" as "a 
person whose native speaking language is a language other than English, and who continues to use 
his or her native language as his or her primary means of oral and written communication"); N.J. 
Rev. Stat. §19:1 2-7. 1 (b) (20 1 0) (requiring voter notices to be printed in any language other than 
English if 1 0% trigger is met). 

102. D.C. Code § 1-1031.01. 

103. Id. § l-1031.02(b). 



2010] LANGUAGE ASSISTANCE 183 



telephonic assistance and written materials (voter registration forms, voter 
guides, and ballot-by-mail applications) in six languages: Chinese, Japanese, 
Korean, Spanish, Tagalog, and Vietnamese. 104 The state as a whole is only 
bound by federal law to provide assistance in Spanish. In the State of 
Washington, which has three counties covered for Spanish and one county 
covered for Chinese under section 203, 105 the secretary of state offers voter 
registration and voter informational materials in seven non-English languages: 
Cambodian, Chinese, Korean, Laotian, Russian, Spanish, and Vietnamese. 106 
Minnesota similarly offers voter registration materials in five non-English 
languages — Hmong, Russian, Somali, Spanish, and Vietnamese — even though 
neither the state nor any of its political subdivisions triggers section 203 coverage 
and neither Russian nor Somali falls within the "language minority" definition 
of the Act. 107 Furthermore, several state election offices offer websites 108 that 
link to the language assistance website of the U.S. Election Assistance 
Commission, which offers national voter registration forms in Spanish and five 
Asian languages. 109 

Secretaries of state have also engaged in significant outreach and education 
efforts to increase voter participation. For example, in Connecticut, where 
Spanish-language assistance is required in a number of urban counties under 
section 203, the secretary of state engaged in an extensive voter outreach and 
registration campaign in 2008 to increase the number of Latino registered voters 
statewide. The "jTu Voto Si Cuenta!" ("Your Vote Does Count!") program 
included an aggressive Spanish-language media campaign and translated voter 
education materials on the use of paper ballots with new optical scan technology 
and on proper forms of identification for registering and voting. The "jTu Voto 



104. See Multilingual Voter Services, Cal. Sec'YOFState, http://www.sos.ca.gov/elections/ 
elections_multi.htm (last visited Oct. 17, 2010). 

1 05 . See Voting Rights Act Amendments of 1 992, Determinations Under Section 203,67 Fed. 
Reg. 48,871, 48,877 (July 26, 2002). 

1 06. Elections & Voting, Wash. Sec'YOFState, http://www.sos.wa.gov/elections (last visited 
Oct. 17,2010). 

107. See Voting Information in Other Languages, MINN. Sec'y OF STATE, http://www.sos. 
state.mn.us/index.aspx?page=638 (last visited Oct. 17, 2010). Voting instructions at polling sites 
were first offered in Minnesota in 2002 in three languages: Hmong, Somali, and Spanish. See 
Citizen Outreach Advisory Taskforce Urges New Citizens to Vote, ASIAN PAGES, Nov. 14, 2002, 
at 6, available at 2002 WLNR 1 1553301. 

1 08. See, e.g. , Elections Division, Sec'yofMass., http://www.sec.state.ma.us/ele (last visited 
Oct. 17, 2010); Forms and Publications, Va. State Bd. of Elections, http://www.sbe. Virginia. 
gov/cms/Forms_Publications/Index.html (last visited Oct. 17, 2010); National and NC. Voter 
Registration Forms, N.C. STATE Bd. OF ELECTIONS, http://www.sboe.state.nc.us/content.aspx?id=48 
(last visited Oct. 17, 2010); Voter Registration, R.I. Bd. OF ELECTIONS, http://www. 
elections.ri.gov/voting/registration.php (last visited Oct. 17, 2010). 

1 09. See Register to Vote, U.S. Election Assistance Comm'n, http://www.eac.gov/voter_ 
resources/registertovote.aspx (last visited Oct. 1 7, 20 1 0) (making available registration forms in 
Chinese, English, Japanese, Korean, Spanish, Tagalog, and Vietnamese). 



1 84 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



Si Cuenta!" project registered over 21,000 new voters, more than double the 
original goal of the campaign. 110 

2. Local Policies and Practices . — A wide range of voluntary policies and 
practices also exists at the county and city levels. Among the most common 
efforts are recruitment and hiring of bilingual staff to serve as poll workers in 
targeted districts. For example, several jurisdictions provided voluntary 
assistance to Asian American voters through bilingual interpreters and poll 
workers during the November 2008 elections as follows: Chicago hired election 
judges who spoke Gujarati, Hindi, Korean, Tagalog, Urdu, and Vietnamese; New 
Orleans hired Vietnamese interpreters and election commissioners; Lowell, 
Massachusetts hired Khmer and Vietnamese interpreters; Quincy, Massachusetts 
hired Chinese and Vietnamese poll workers; Middlesex, New Jersey appointed 
Chinese, Gujarati, and Hindi-speaking poll workers; and Philadelphia appointed 
Chinese, Khmer, Korean, and Vietnamese interpreters. 111 

Another common practice is providing translated voter registration forms and 
basic voter information materials. In the City of Cambridge, Massachusetts, 
which is not covered by section 203 in any language, voter registration materials 
are available in English and eight other languages: Arabic, Chinese, Haitian 
Creole, Korean, Portuguese, Russian, Spanish, and Vietnamese. 112 In 
Washington's King County, which includes Seattle and is only required under 
section 203 to provide assistance in Chinese, voter registration materials are also 
available in Cambodian, Korean, Laotian, Russian, Spanish, and Vietnamese. 113 
And although Los Angeles County is required to provide language assistance in 
Spanish and five Asian languages, it also offers a voter information brochure that 
is translated into Armenian, Khmer, and Russian. 114 

A variation on these local policies is the law enacted in New York to require 
Russian-language assistance in New York City, where there were over 243,000 
individuals of Russian ancestry living in the year 2000. 115 The state legislation 



1 10. See Jocelyn F. Benson, State Secretaries of State 93-94 (2010); Press Release, 
Susan Bysiewicz, Sec'y of the State of Conn., Bysiewicz: More Than 21,000 Latinos Become 
Newly Registered Voters During jTu Voto Si Cuenta! Campaign (Oct. 29, 2008), available at 
http://www.sots.ct.gOv/sots/lib/sots/releases/2008/l 0.29. 08_tu_voto_si_cuenta_a_success.pdf (last 
visited Oct. 17,2010). 

111. See Lessons Learned from the 2008 Election: Hearing Before the H. Subcomm. on the 
Constitution, Civil Rights, and Civil Liberties, 111th Cong. 93 (2009) (testimony of Glenn D. 
Magpantay, Staff Attorney, Asian Am. Legal Defense & Educ. Fund). 

112. See Voter Registration, CITY OF CAMBRIDGE ELECTION Comm'n, http://www. 
cambridgema.gov/ELECTION/ProgramsServices.cfm (last visited Oct. 17, 2010). 

113. See Voter Registration, KING CNTY. ELECTIONS, http://www.kingcounty.gov/elections/ 
regi strati on. aspx (last visited Oct. 17, 2010). 

1 1 4. See L. A. Cnty. Registrar-Recorder/Cnty. Clerk, http://www.lavote.net (last visited 
Oct. 17,2010). 

115. See QT-P13. Ancestry: 2000, New York City, New York, U.S. CENSUS BUREAU, 
http://factfinder.census.gov (follow "DATA SETS" hyperlink, select "Census 2000 Summary File 
3," and follow "Enter a table number" hyperlink; search "QT-P13" and follow "Go" hyperlink; 



2010] LANGUAGE ASSISTANCE 185 



requires Russian-language assistance in every city in the state that has a 
population exceeding one million people, which currently applies only to New 
York City. 116 The law requires that the New York City Board of Elections 
provide information in Russian on its website and that the board produce and 
disseminate Russian-language booklets containing voter registration, absentee 
ballot instructions, and general voter information citywide. 117 

Providing focused language assistance to an immigrant group that comprises 
a sizable portion of a city's population is a recurring theme in local 
policymaking. For example, Florida's Miami-Dade County has required 
assistance in Creole to the local Haitian American community since 2000. 
Because it contains one of the largest Cuban American communities in the 
country, Miami-Dade has been required under section 203 to provide Spanish- 
language assistance since the mid-1970s. The Haitian American population has 
become a major segment of South Florida's population as well, driven by the 
migration of refugees and other immigrants from Haiti since the 1970s. 
According to 2000 census data, the Haitian American population in Miami -Dade 
County numbered over 95,000 and constituted 4.2% of the county's 
population. 118 

In 1 999, the Miami-Dade Board of County Commissioners unanimously 
passed an ordinance which requires Creole translations to be posted in voting 
booths, that publicity be generated in appropriate Creole-language media, and, 
as appropriate, that ballots be translated into Creole. 1 19 When extensive problems 



select " Place" under "Select a geographic type," then select "New York" and then "New York 

city"; follow "Add" hyperlink, then follow "Show Result" hyperlink) (last visited Oct. 17, 2010). 

1 1 6. Since the population of the state's next largest city, Buffalo, was less than 300,000 in the 
year 2000, it is unlikely that any other city will be covered in the near future. 

117. N.Y. Elec. Law § 3-506 (McKinney 2009 & Supp. 2010). The section states: 

A board of elections in a city of over one million shall provide the same information in 
Russian that it provides in languages other than English on its website. It shall also 
produce and disseminate citywide a booklet that includes: (a) a voter registration form 
in English with instructions in Russian; (b) instructions in Russian regarding the criteria 
and application process for obtaining an absentee ballot; and (c) a section with general 
voter information in Russian including frequently asked questions. Such board may 
include other languages on its website and in such booklet. 

118. See QT-P13 Ancestry: 2000, Miami-Dade County, Florida, U.S. CENSUS BUREAU, 
http://factfinder.census.gov (follow "DATA SETS" hyperlink, select "Census 2000 Summary File 
3," and follow "Enter a table number" hyperlink; search "QT-P13" and follow "Go" hyperlink; 
select " — County" under "Select a geographic type," then select "Florida" and then "Miami-Dade 
County"; follow "Add" hyperlink, then follow "Show Result" hyperlink) (last visited Oct. 17, 
2010). 

1 19. Miami-Dade Cnty.,Fla., Code of Ordinances § 12-16 (1999). The ordinance states: 
(a) In those precincts in which the Supervisor of Elections determines that a significant 
portion of the electorate is Haitian- American, the Supervisor of Elections shall provide 
voting booths containing Creole translations in addition to booths containing Spanish 
translations. 



1 86 INDIANA LAW REVIEW [Vol. 44: 161 



with voter assistance arose during the November 2000 election, the Department 
of Justice initiated a lawsuit under section 208 's assistor provisions because 
Haitians are not a language minority group under section 203. The 2002 consent 
decree bolstered the original Miami-Dade language assistance policies by adding 
requirements that local officials engage in best efforts to assign bilingual poll 
workers to assist Haitian voters in appropriate precincts and make multilingual 
ballots available at every polling place in the County. 120 Nearby Palm Beach 
County followed Miami -Dade's lead and began providing language assistance in 
Creole in 2002; Broward County added Creole assistance in 2008. m 

Another important site for voluntary language assistance has been Southern 
California, where several cities in the region have a major immigrant group that 
forms a significant and politically active segment of the population. Among the 
first cities to provide language assistance to groups falling outside of the Act's 
mandatory coverage was Monterey Park, whose city council first voted to print 
election materials in Chinese and Spanish in 1991. 122 The Chinese American 
population has been a significant political bloc within Monterey Park since the 
1980s; at the time, it constituted 36% of the city's population of over 60,000. 123 
Chinese American community activists played a key role in the enactment of the 
local policy, which was seen as an important tool for incorporating local 
immigrant populations into the political process. 124 As one local advocate 
commented to the press, "This is a process through which we can bring 
(immigrants) into the mainstream of America ... to bring the old and new 



(b) In those elections in which the Supervisor of Elections determines that it is 
appropriate to provide ballots in Creole, those ballots shall be advertised in a Creole 
language newspaper selected by the Supervisor of Elections. 

(c) The provisions of this ordinance shall apply only to ballots provided at voting booths 
in the precincts described in subsection (a) hereof and shall apply only to county-wide 
elections and other appropriate elections as determined by resolution of the Board of 
County Commissioners. 

(d) The provisions of this section shall become operative only upon a written finding 
provided to this Board by the Supervisor of Elections that a certified Creole translator 
exists who can perform the translations mandated by this section. 

The board of county commissioners subsequently passed a resolution directing the supervisor of 
elections to identify precincts in Homestead and Florida City with significant Haitian populations 
and to prepare ballots for those precincts. See Miami-Dade Cnty., Fla., Res. R-296-00 (2000). 

120. Consent Order at 6, United States v. Miami-Dade Cnty., No. 02-21698 (S.D. Fla. June 
1 7, 2002); see JoNel Newman, Ensuring That Florida 's Language Minorities Have Access to the 
Ballot, 36 Stetson L. Rev. 329, 361-62 (2007). 

121. See Alva James- Johnson, Creole Ballots on Course for '08: Elections Officials Aim to 
Lure More Haitian-American Voters to Polls, S. Fla. Sun-Sentinel, Apr. 7, 2007, at IB. 

1 22. Irene Chang, City Ballots in Chinese, Spanish Are Approved, L.A. Times, Dec. 1 2, 1 99 1 , 
atJ2. 

123. Id. 

124. Id. 



20 1 0] LANGUAGE ASSISTANCE 1 87 



together." 125 Sam Kiang, the mayor of Monterey Park who sponsored the 
measure, added, "This is something that will encourage more participation in the 
democratic system." 126 

Similar policies have developed in Southern California cities with substantial 
immigrant populations, including Beverly Hills and its large Iranian American 
community that forms approximately one-quarter of the city's population. 127 In 
the year 2000, Russian Americans made up nearly 14% of West Hollywood's 
population of over 35,000; 128 Armenian Americans constituted nearly 28% of 
Glendale's population of nearly 200,000; 129 and over 20,000 Cambodian 
Americans — the largest Cambodian community in the United States — formed a 
sizable portion of Long Beach's population of over 460,000. 13 ° Each of these 
cities has relied on bilingual poll workers for several years, and each city offers 
website information and printed election materials in the relevant languages. 
These cities also offer fully translated sample ballots for local elections. 131 
Additionally, they offer a variety of non-electoral municipal services in the 
targeted language and provide opportunities for participation in the governance 
of the city. For example, West Hollywood has employed a bilingual Russian 
outreach coordinator since the mid-1990s and since 2000 has utilized a Russian 



125. Id. 

126. Id. 

127. See supra notes 1-9 and accompanying text. 

128. See QT-PI3 Ancestry: 2000, West Hollywood City, California, U.S. CENSUS BUREAU, 
http://factfmder.census.gov (follow "DATA SETS" hyperlink, select "Census 2000 Summary File 
3," and follow "Enter a table number" hyperlink; search "QT-P13" and follow "Go" hyperlink; 
select ". . . . Place" under "Select a geographic type," then select "California" and then"West 
Hollywood city"; follow "Add" hyperlink, then follow "Show Result" hyperlink) (last visited Oct. 
17,2010). 

129. See QT-P1S Ancestry: 2000, Glendale City, California, U.S. CENSUS BUREAU, 
http://factfmder.census.gov (follow "DATA SETS" hyperlink, select "Census 2000 Summary File 
3," and follow "Enter a table number" hyperlink; search "QT-P13" and follow "Go" hyperlink; 
select ". . . . Place" under "Select a geographic type," then select "California" and then "Glendale 
city"; follow "Add" hyperlink, then follow "Show Result" hyperlink) (last visited Oct. 17, 2010). 

130. See DP-1 Profile of General Demographic Characteristics: 2000, Long Beach City, 
California, U.S. Census Bureau, http://factfinder.census.gov (follow "DATA SETS" hyperlink, 
select "Census 2000 Summary File 2" and follow "Enter a table number" hyperlink; search "DP- 1 " 
and follow "Go" hyperlink; select ". . . . Place" under "Select a geographic type," then select 
"California" and then "Long Beach city"; follow "Add" hyperlink, then follow "Show Result" 
hyperlink; follow "Population Groups" hyperlink under "Quick Tables"; select ". . Cambodian 
alone or in any combination," then follow "Add" and "Show Result" hyperlinks) (last visited Oct. 
17,2010). 

131. See Election Home Page, CITY OF LONG BEACH CITY CLERK, http://www.longbeach. 
gov/cityclerk/elections/default.asp (last visited Oct. 17, 2010); Election Results, City OF W. 
Hollywood, http://www.weho.org/index.aspx?page=83 (last visited Oct. 17, 2010); City of 
Glendale, CA Election Info, Glendale Votes, http://www.glendalevotes.org (last visited Oct. 1 7, 
2010). 



188 INDIANA LAW REVIEW [Vol. 44:161 



advisory board that makes policy recommendations to the city council. 132 

Larger cities and counties typically have multiple immigrant populations 
whose needs are addressed through a range of policies. Chicago, for example, 
has provided voting assistance in several languages in recent years and employs 
a tiered approach to language assistance tied to the relative sizes of its limited- 
English-speaking populations. As the major city within Cook County, Chicago 
is required under section 203 to provide language assistance in Chinese and 
Spanish. The Chicago Board of Election Commissioners offers several 
accommodations: a website that has fully translated versions in three languages 
other than English (Chinese, Polish, and Spanish); oral assistance in these three 
languages through dedicated telephone lines; and voter registration forms in the 
three languages plus Korean. 133 In addition, the city provides a set of basic voter 
information materials in Arabic, Assyrian, Bosnian, Croatian, Gujarati, Korean, 
Romanian, Russian, Serbian, Tagalog, Urdu, and Vietnamese, and it recruits 
bilingual election judges to cover these languages. 134 

The City of Minneapolis offers voluntary assistance in multiple 
languages — Hmong, Somali, and Spanish — and has taken a broader approach to 
language assistance that considers translations and oral assistance provided by 
local government as a whole. Under a city council resolution passed in 2003, a 
citywide limited-English proficiency plan was developed the following year to 
create strategies for assisting multiple language groups in the city. 135 The city 
clerk later developed a separate plan addressing language assistance for local 
voters, including the recruitment and hiring of bilingual poll workers. 136 The 
language assistance available to limited-English proficient voters in Minneapolis 
is not as extensive as in some other cities, but the integration of voting assistance 
with other city services has promoted a number of benefits, such as coordinated 
translations of services in Hmong, Somali, and Spanish through specialized 
telephone lines and the city's website. 137 



132. See Russian Outreach, City OF W. HOLLYWOOD, http://www.weho.org/index. 
aspx?page=869 (last visited Oct. 17, 2010). 

1 33. See Bd. of Election Comm'rs for the City of Chi., http://chicagoelections.com (last 
visited Oct. 17,2010). 

134. See id. 

135. See City of Minneapolis, Minneapolis in Any Language: Policies and Procedures 
to Ensure Equal Access to City Services for People with Limited English Proficiency 3, 
3 (Nov. 2004) [hereinafter Minneapolis in Any Language], available at http://www.ci. 
minneapolis.mn.us/policies/MplsLEPPlan.pdf (last visited Oct. 17, 2010). 

136. See City Of Minneapolis, City Clerk's Dep't 2007-201 1 Business Plan 12 (2006), 
available at http://www.ci.minneapolis.mn.us/results-oriented-minneapolis/docs/ 
CityClerkBusinessPlan_2007.pdf (last visited Oct. 17, 2010). 

137. See Elections & Voter Registration, CITY OF MINNEAPOLIS, http://www.ci.minneapolis. 
mn.us/ elections (last visited Oct. 17, 2010). 



2010] LANGUAGE ASSISTANCE 1 89 



D. Patterns, Problems, and Effective Practices 

Each state and local government that engages in language assistance has a 
nuanced legal and political environment, and I have made no attempt to engage 
in a detailed political investigation, whether through case studies or quantitative 
data analyses, that might provide deeper insights into the formation of local 
policies. Yet it is clear from a cursory analysis that legal, institutional, and 
interest group pressures, as well initiatives of state and local election officials, 
have affected the expansion of voluntary language assistance across 
governmental bodies. Many of the jurisdictions that have provided voluntary 
services to a language group that is not covered by section 203 have also been 
required to provide mandatory language assistance to at least one group that is 
covered by the Act. Indeed, several jurisdictions only began engaging in 
voluntary language assistance because of the Act's federal requirements, and 
community-based advocacy has been essential to spur localities to expand 
language assistance to other groups. 

Institutional pressures stemming from the enforcement of other federal anti- 
discrimination laws have also played a role in local governments' adoption of 
language assistance policies. Title VI of the Civil Rights Act of 1964 prohibits 
national origin discrimination by recipients of federal funding, and along with its 
implementing regulations, mandates that recipients provide language 
accessibility. Accordingly, state and local governments receiving federal funds 
have taken steps to assist limited-English proficient individuals in a wide range 
of governmental services. The Minneapolis language access plan, for example, 
makes clear that Title VI and its implementing regulations form the legal 
backbone of the city 's provision of services to limited-English proficient citizens, 
and that federal law requires Minneapolis to "provide meaningful access to 
services for city residents with limited English." 138 

It is also clear that state and local policies provide tangible benefits to 
limited-English proficient voters and that these benefits can be especially useful 
for language groups whose voters fall outside the coverage of the Act's language 
assistance provisions. Some of the policies, such as the procedures used in 
Chicago, are particularly revealing because they show that there can be variations 
in assistance to multiple groups depending on size and needs. These policies 
offer more flexibility than the Act's mandates, which guarantee no assistance to 
groups that do not satisfy the Act's statistical triggers. The policies are also 
instructive because they show that some cities, such as West Hollywood and 
Minneapolis, are adopting more comprehensive measures to address the needs 
of limited-English proficient individuals. In those cities, language assistance in 
voting is one of several governmental services in which translations and other 
types of assistance are employed to eliminate barriers to civic participation. 

Nevertheless, there are weaknesses in many of these state and local policies. 
Despite large immigrant communities within their boundaries, some cities and 
counties have been resistant to providing a full array of language assistance 



138. See Minneapolis in Any Language, supra note 135, at 10. 



1 90 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



measures. Queens County in New York offered poll worker assistance in Korean 
in the mid-1990s, but written translations were not available until several years 
later. Los Angeles County similarly delayed providing written language 
assistance in Korean until 1998. The New York City Board of Elections and 
local officials did not originally support Russian-language assistance prior to the 
passage of a state law in 2009. 139 This legislation was necessary to require the 
development of Russian materials, and the law only requires the board to develop 
basic informational materials, not to provide oral assistance or fully translated 
ballots. 

Moreover, the standards for many forms of voluntary assistance are not 
consistent, and local requirements are often less rigorous than the mandates of 
the Act. State and local policies may lack clear triggering mechanisms to 
determine when language assistance should be provided in the first place, and 
although some local governments have developed tiers of services for multiple 
language groups, they do not necessarily articulate the numerical criteria used to 
differentiate among language groups. State and local election policies may also 
lack the enforcement machinery, such as private rights of action and civil rights 
offices charged with administrative or litigation powers, that are available under 
federal civil rights laws. 

Local demographics and politics vary significantly, but optimal legislation 
can draw on both federal compliance standards and leading practices at the state 
and local levels. For example, in response to weaknesses in federal and state 
law, Brian Sutherland has proposed model state legislation that attempts to 
address problems arising in the current constellation of election policies. Among 
the recommendations are the following: (1) creating an office of minority 
language assistance within the state's chief election official's office; (2) 
developing structural solutions to coverage formula problems, such as delegating 
authority for coverage determinations to appropriate agencies; (3) establishing 
relaxed statistical triggers for minority group coverage; (4) employing annual or 
biennial coverage determinations to address demographic changes; (5) amending 
state assistor laws to be consistent with section 208; and (6) drawing on the Act's 
enforcement structures to create parallel programs at the state level. 140 

Localities can also go further by providing a sliding scale of interpreter 
services and written translations based on group size and need. Costs must be 
considered in setting any language assistance standards, but addressing voters' 
needs may not be unduly burdensome if an appropriate range of mechanisms is 
in place. For instance, cities such as Cambridge and Chicago have opted to focus 
on voter registration and voter information pamphlets to provide the widest array 
of language assistance through translated forms — eight languages in Cambridge, 
fifteen in Chicago. Similarly, the recruitment of bilingual poll workers is a 
widespread practice that can cover a multitude of languages, and, if done 
strategically, without large additional costs. More extensive services paralleling 



1 39. See Walter Ruby, Bloomberg Blamed for Russian Ballot Failure, JEWISH Wk. (July 27, 
2007),http://www.thejewishweekxonVnews^ 

140. Sutherland, supra note 73, at 364-79. 



2010] LANGUAGE ASSISTANCE 191 



section 203 compliance can then be reserved for the largest language group 
populations. 

Cost considerations may limit services to smaller language groups, but even 
the smallest groups can receive assistance if local jurisdictions provide translated 
notices that inform voters of their right to use individual assistors pursuant to 
section 208 of the Act. The financial costs of such basic notices would be 
minimal if they entail translating a small number of sentences, printing them on 
election materials designed for the general populace, and distributing additional 
translated materials that are strategically targeted to appropriate language groups. 
Oral and video notices could also be distributed via recorded public service 
announcements, websites, or community organizations that work closely with the 
relevant populations. 

Moreover, state and local government need not bear all of the costs of 
language assistance. Federal support under the Help America Vote Act 
(HAVA), 141 which offers a system of grants and government payments for 
language assistance to be incorporated into state voting systems, provides one 
basis for expanding state and local programs. 142 The U.S. Election Assistance 
Commission, which is the primary agency charged with implementing HAVA, 
has recognized the importance of language assistance and has itself developed 
voter education and voter registration materials in six languages: Chinese, 
Japanese, Korean, Spanish, Tagalog, and Vietnamese. 143 The expansion of 
HAVA grants and materials generated through the Election Assistance 
Commission could play key roles in the growth of local assistance policies. 144 

Although states and localities have made strides in addressing the needs of 
limited-English proficient voters, language assistance policies nationwide remain 
less than ideal. Local policies can be easily revised — or even repealed — and 
ongoing debates over immigration and immigrants' rights suggest that local 
policymaking can quickly shift in directions that disfavor language assistance. 
The Iowa Secretary of State, for example, provided voter registration forms in 
Bosnian, Laotian, Spanish, and Vietnamese on its website until 2008, when a 
state court ruled that Iowa's English-only law, known as the Iowa English 
Language Reaffirmation Act, 145 prohibited the distribution of voter materials in 



141. 42 U.S.C. §§ 15301-15545 (2006 & Supp. 2008). 

142. HAVA contains provisions for payments to the states for "[i]mproving the accessibility 
and quantity of polling places, including providing physical access for individuals with disabilities, 
providing nonvisual access for individuals with visual impairments, and providing assistance to 
Native Americans, Alaska Native citizens, and to individuals with limited proficiency in the English 
language." Id. § 15301(b)(1)(G). 

143. See Voting Accessibility, U.S. ELECTION ASSISTANCE COMM'N, http://www.eac.gov/ 
voterresources/votingaccessibility.aspx (last visited Oct. 17, 2010). 

144. For a discussion of some of the limitations of HAVA, see Daniel P. Tokajs, Early Returns 
on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 GEO. 
Wash. L. Rev. 1206 (2005); Daniel P. Tokaji, The Future of Election Reform: From Rules to 
Institutions, 28 YALE L. & POL'Y Rev. 125 (2009). 

1 45 . Iowa Code §1.18 (West, Westlaw through 20 1 Reg. Sess.). The law requires that "the 



1 92 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



languages other than English. 146 And, of course, many localities that have no 
obligations under the Act have chosen not to provide voluntary language 
assistance at all. Nonetheless, as I discuss in the next Part, recent developments 
in state and local election policies may be signaling more lasting trends in anti- 
discrimination law and in public policies addressing civic participation and the 
integration of immigrants into local communities. 

III. Trends in Voting Rights, Election Administration, 
and Language Assistance 

The expansion of local language assistance policies in recent years reflects 
an incremental but upward trend towards greater recognition of language 
differences and language needs in voting rights jurisprudence. Even though the 
Act is one of the few federal statutes to address language-based discrimination 
explicitly and has had significant and lasting effects on the participation of 
minorities in the electoral process, its provisions are largely limited to remedying 
discrimination against specific language groups. In many ways, the Act lags 
behind other federal anti-discrimination policies that recognize group differences 
and establish governmental obligations to address these differences. Many state 
and local policymakers have been engaged in anti-discrimination projects to fill 
the gaps that Congress has declined to address through federal legislation. 

Local voting policies thus offer important insights into the evolving nature 
of language rights, anti-discrimination law, and election administration. Most 
local policies have not been enacted to correct longstanding educational and 
electoral discrimination in the same way that Congress sought to create structural 
remedies within the Act. Local policies have instead been designed to address 
growing community needs and eliminate barriers to political participation facing 
large numbers of limited-English proficient citizens, especially immigrants and 
the elderly. In this Part, I discuss language assistance policies as evidence of 
larger trends in the law to address the subordination of limited-English proficient 
citizens who cannot exercise a meaningful vote without language assistance and, 
more broadly, to promote civic engagement and political participation in 
communities with large populations of immigrants. 

A. Language Accommodation and Local Anti-discrimination Law 

Although they are not always framed as formal civil rights laws, local 
election policies reflect an expansion of anti-discrimination norms to recognize 
language differences and accommodate those differences through oral and 



English language shall be the language of government in Iowa" and that "[a] 11 official documents, 
regulations, orders, transactions, proceedings, programs, meetings, publications, or actions taken 
or issued . . . [by the State] . . . shall be in the English language." Id. § 1.18(3). 

146. King v. Mauro, No. CV6739 (Iowa Dist. Ct., Mar. 31, 2008); see also Michael A. 
Zuckerman, Constitutional Clash: When English-Only Meets Voting Rights, 28 YALE L. & Pol' Y 
Rev. 353(2010). 



2010] LANGUAGE ASSISTANCE 193 



written assistance. 147 The accommodation of group differences is already an 
established principle that operates in a number of areas of anti-discrimination 
law, particularly in federal laws requiring "reasonable accommodations" to 
address religious discrimination and disability discrimination in the workplace. 148 
The voter who is unable to understand an English-only ballot, but who could 
exercise a meaningful vote if the election materials were available in another 
language, is not unlike the disabled individual who can perform the essential 
functions of a job if office practices or equipment are modified, or who can cast 
a vote if provided access to polling sites and offered appropriate voting 
technologies to accommodate the disability. 149 

Accommodation laws function as a form of anti-discrimination enforcement 
distinct from traditional civil rights laws because they embody a "difference" 
model rather than the more common "sameness" model that prohibits 
differentiation on the basis of a group characteristic or trait. 150 A difference 
model "assumes that individuals who possess the quality or trait at issue are 
different in a relevant respect from individuals who don't and that 'treating them 
similarly can itself become a form of oppression.'" 151 Accommodations are also 
bounded by cost-benefit considerations affecting both the individual requiring an 
accommodation and the entity providing the accommodation. Once a group- 
based difference is recognized, there is a legal duty to provide an appropriate 
accommodation, but only up to the point that the provider faces no undue 
hardship. 152 

Standards for language accommodation, although not as thoroughly 
developed as the reasonable accommodation standards in religion and disability 
discrimination statutes, do have a basis in federal case law and agency 
regulations. Interpretations of Title VI of the Civil Rights Act of 1964, along 
with its implementing regulations and compliance guidelines, recognize that 
failure to address language barriers among recipients of federal funding can be 



147. I have argued previously that the accommodation of language differences is an ascendant 
trend in federal voting rights jurisprudence. See generally Ancheta, supra note 1 1 . 

148. See, e.g., 42 U.S.C. § 121 1 1 (2006 & Supp. 2010) (describing standards and forms of 
disability-based reasonable accommodations within the Americans with Disabilities Act); 29 C.F.R. 
§ 1605.2 (2010) (regulating the reasonable accommodations necessary to prevent religion-based 
employment discrimination under Title VII of the Civil Rights Act of 1964). 

149. See Daniel P. Tokaji & Ruth Colker, Absentee Voting by People with Disabilities: 
Promoting Access and Integrity, 38 McGEORGE L. Rev. 1015 (2007); Michael Waterstone, 
Constitutional and Statutory Voting Rights for People with Disabilities, 14 STAN. L.&Pol'y Rev. 
353 (2003). 

150. See Pamela S . Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable 
Accommodation, 46 DukeL.J. 1, 10 (1996). 

151. Id. 

152. See, e.g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (holding that 
religious accommodations need only be made when costs are small and that anything "more than 
a de minimis cost" would impose an undue hardship). 



194 INDIANA LAW REVIEW [Vol. 44: 161 



a form of national origin discrimination requiring action by the recipient. 153 In 
Lau v. Nichols, the U.S. Supreme Court linked language access to national origin 
discrimination when it concluded that the failure to provide English instruction 
to non-English-speaking Chinese American students in San Francisco public 
schools violated Title VI regulations. 154 Guidelines to the regulations stated, in 
part, that "[w]here inability to speak and understand the English language 
excludes national origin-minority group children from effective participation in 
the educational program offered by a school district, the district must take 
affirmative steps to rectify the language deficiency. . . ." 155 Implicit in the Lau 
Court's reasoning was the recognition of a significant group-based difference that 
resulted in a deprivation of rights based on that difference — specifically, the 
Chinese American students' inability to understand English led to discrimination 
resulting from the government's failure to take adequate steps to instruct the 
children in English and other basic subjects. 156 

Issued by President Clinton in 2000, Executive Order 1 3, 1 66 expands on the 
notion of accommodation within Title VI through compliance standards that 
require federal agencies and recipients of federal funding to ensure that limited- 
English proficient individuals receive meaningful access to programs through 
appropriate forms of assistance. 157 In coordination with Executive Order 1 3, 1 66, 
the Department of Justice issued guidelines that do not rely on a fixed trigger like 
the Act. Instead, they weigh group size and interests against the costs of 
providing language-appropriate services. Federal agencies and recipients of 
funding are required under agency regulations to balance multiple factors: (1) 
the number or proportion of limited-English proficient persons to be served; (2) 
the frequency with which these individuals come in contact with the program; (3) 
the nature and importance of the program or service to people's lives; and (4) the 
costs and resources available to the recipient. 158 

Employing these guidelines, agencies and recipients of federal funds provide 
oral interpretation services and written translations when they are justified, but 
in some instances the balance may tip in favor of providing minimal assistance. 
This is especially true when the group is small, the interest is less important, and 
the costs significantly outweigh the benefits. For instance, guidelines for one 



153. 42 U.S.C. §§ 2000d-2000d-4a (2006). 

154. 414 U.S. 563, 566-68(1974). 

155. Id. at 568 (quoting Identification of Discrimination and Denial of Services on the Basis 
of National Origin, 35 Fed. Reg. 11,595 (July 18, 1970)). 

1 56. The Lau decision led to the passage of the Equal Educational Opportunities Act of 1 974, 
20 U.S.C. §§ 1701-1721 (2006), which states in part: "No State shall deny equal educational 
opportunity to an individual on account of his or her race, color, sex, or national origin, by . . . the 
failure by an educational agency to take appropriate action to overcome language barriers that 
impede equal participation by its students in its instructional programs." Id. § 1703(f). 

157. Exec. Order No. 13,166, 3 C.F.R. § 289, 290 (2001). 

158. Enforcement of Title VI of the Civil Rights Act of 1 964 — National Origin Discrimination 
Against Persons with Limited English Proficiency; Policy Guidance, 65 Fed. Reg. 50,123, 50,124- 
25 (Aug. 16,2000). 



2010] LANGUAGE ASSISTANCE 195 



federal agency contemplate a mix of services, including on-site bilingual staff, 
commercial telephone translation services, use of family members or friends for 
oral interpretation, and complete, partial, or summary translations in the case of 
written materials. 159 Unfortunately, Executive Order 13,166 has not been a 
significant source of voting rights enforcement even though large amounts of 
federal funding flow to state governments to finance election reforms via laws 
such as the Help America Vote Act. 160 

Election policies can nonetheless encompass the difference principle inherent 
in accommodation laws, and they can employ language assistance measures that 
address barriers to voting while still allocating fair and appropriate costs to the 
government. Indeed, a weak form of language accommodation already exists in 
section 208 of the Act, which recognizes the legally significant difference of 
being an illiterate or limited-English proficient voter and accommodates that 
difference by guaranteeing the voter's right to have a personal assistor. 161 
Although they are not asked to bear the costs of providing assistors, local 
governments can be held liable for denying assistance to voters who need the 
help to cast a meaningful vote. 162 

Local language assistance policies reflect even more robust forms of 
language accommodation. These policies typically recognize the basic difference 
that attaches to limited-English proficiency by acknowledging that voters who 
lack the skills necessary to fully comprehend English-only election materials face 
barriers to participation in the electoral process. Local governments 
accommodate these differences in a variety of ways through language assistance, 
including oral interpretation and translations of various written election 
materials. Election policies also balance the hardships of providing 
accommodations by limiting both the forms of assistance and the number of 
language groups receiving assistance. Oral assistance and written translations are 



159. Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition 
Against National Origin Discrimination Affecting Limited English Proficient Persons, 68 Fed. Reg. 
47,3 1 1 , 47,3 15-19 (Aug. 8, 2003) (providing guidelines for U.S. Department of Health and Human 
Services). 

160. 42 U.S.C. §§ 15301-15545 (2006 & Supp. 2008); 36 U.S.C. §§ 152601-152612. 
Government enforcement of Title VI against local election officials has largely fallen between the 
cracks of agency responsibility; the Voting Section of the Department of Justice does not enforce 
Title VI against state or local governments, and other sections of the federal government that 
address program access for limited-English proficient individuals do not enforce voting-related 
claims. 

161. 42 U.S.C. § 1973aa-6 (2006). The Act's structural remedies are also manifestations of 
an accommodation norm, but they are constrained by the requirement of past discrimination against 
enumerated groups and the triggering mechanisms that limit coverage. The "difference" recognized 
in sections 4(f)(4) and 203 of the Act is cabined by the definition of language minorities, and 
measurements of hardships on government are implicitly assessed through statistical triggers that 
impose full duties on government to provide assistance if they are satisfied, but no duties if the 
triggers are not met. Id. § 1973b. 

162. See supra note 71 (citing U.S. Department of Justice litigation to enforce § 208). 



1 96 INDIANA LAW REVIEW [Vol. 44: 1 6 1 



not necessarily offered to every limited-English proficient voter who needs aid, 
but there are often gradations in assistance. Section 203, in contrast, requires 
either full language assistance to a specified language minority group covered by 
the Act or no assistance at all. 

Many local language assistance policies are thus more closely aligned to the 
meaningful access standards under Executive Order 1 3, 1 66 than to the structural 
remedies of the Act, and they offer more flexible forms of language 
accommodation that reach a wider scope of limited-English proficient voters. 
The City of Chicago, for example, limits full translations of its written ballots to 
the two languages required under the Act, offers translated versions of its website 
in three languages, and provides links to voter information pamphlets in an 
additional twelve languages. 163 Similarly, Los Angeles County provides full 
written and oral assistance in Spanish and four Asian languages pursuant to 
section 203, but the county also distributes a voter information brochure that is 
translated into three non-required languages. Armenian, Khmer, and Russian. 164 

More than a few language assistance policies have arisen through the actions 
of state or local election officials, rather than through the creation of legally 
enforceable civil rights and governmental duties. The enforcement of language 
accommodations may therefore be problematic in practice. Nevertheless, the 
simple acknowledgement of language differences and the affirmative steps taken 
by many state and local election officials reflect an extension of anti- 
discrimination norms beyond the basic remedial rationales contained in the Act. 
The growth in state and local laws sends a clear signal to both the federal 
government and other states and municipalities that language accommodation can 
and should be expanded, whether through stronger enforcement of federal 
policies such as Title VI and Executive Order 13,166 or greater voting 
accommodations by states, counties, and cities. 

B. Language Assistance and Civic Engagement 

The provision of language assistance to limited-English proficient voters is 
not merely a matter of anti-discrimination enforcement; it cannot be isolated from 
a set of larger debates over the role of non-English languages in public life and 
the responsibilities of government in promoting the civic engagement of 
immigrants. Disputes over language assistance in elections have been especially 
contentious because of polar views on the rights and responsibilities of voters 
who are naturalized citizens, and the various arguments have been covered in 
great detail in both policy debates and legal and social science literature. 165 
Critics argue that English proficiency is a core element of American citizenship 



163. Bd. of Election Comm'rs for the City of Chi., supra note 133. 

1 64. See L.A. Cnty. Registrar-Recorder/Cnty. Clerk, supra note 1 14. 

165. See generally Schmidt, supra note 12; Cristina M. Rodriguez, Language and 
Participation, 94 Cal. L. Rev. 687 (2006) [hereinafter Rodriguez, Language and Participation]; 
Cristina M. Rodriguez, Accommodating Linguistic Difference: Toward a Comprehensive Theory 
of Language Rights in the United States, 36 Harv. C.R.-C.L. L. Rev. 133 (2001). 



20 1 0] LANGUAGE ASSISTANCE 1 97 



and point to the basic requirements for naturalization, which, except for cases 
involving long-term elderly residents, include English literacy. 166 Critics further 
suggest that language assistance generally diminishes the role of English as a 
civic unifier and deters immigrants from learning English in the first place. 167 In 
contrast, supporters of language rights invoke basic values of democratic 
participation and contend that public policies should support multiple objectives, 
such as encouraging transitional language assistance and increasing opportunities 
for English-language acquisition to incorporate the limited-English proficient 
into American society. 168 In spite of this debate, an increasing number of state 
and local governments have opted to provide voluntary language assistance as 
part of larger agendas to promote civic engagement and immigrants' participation 
in the political process. Language access policies adopted in cities such as West 
Hollywood, Minneapolis, and San Francisco provide useful examples. 

Approximately one in seven residents in California's City of West 
Hollywood is Russian American, 169 and the local Russian population plays a 
significant role in the city's political, social, and cultural life. In order to 
coordinate key bilingual services to the local population, West Hollywood has 
employed a full-time bilingual Russian outreach coordinator in its department of 
public safety and community services since 1995 and has utilized an active 
Russian advisory board that makes policy recommendations to the city council 
since 2000. 170 Composed of eleven Russian speakers appointed by the city 
council, the advisory board provides information on issues relating to the 
development and coordination of services to the Russian American community 
and makes recommendations to the city council on programs and policies that 
could benefit West Hollywood's Russian-speaking residents. 171 Among its 
primary goals is ensuring that "new immigrants participate actively in the civic 
life of the City," which West Hollywood has accomplished by providing 
"translation services, familiarization with the inner workings of local 
government, assistance in obtaining City and social services, and special cultural 
events." 172 Voting assistance is just one of several governmental services offered 
in Russian. 173 

In Minneapolis, where growth of the Hmong, Latino, Somali, and other 
immigrant communities has created an increasingly diverse population, language 
assistance in voting is a key element of a centralized plan to provide multilingual 
assistance in a range of city services. The "Minneapolis in Any Language" plan 
was developed in 2004 in response to a city council mandate to address language 



166. 8 U.S.C. § 1423(a)(1) (2006). 

167. See generally Perea, supra note 12; SCHMIDT, supra note 12. 

168. See Rodriguez, Language and Participation, supra note 1 65 . 

169. See QT-P 13 Ancestry: 2000, West Hollywood City, California, supra note 128. 

170. Russian Outreach, supra note 132. 

171. Russian Advisory Board, CITY OF W. HOLLYWOOD, http://www.weho.org/index. 
aspx?page=731 (last visited Oct. 17,2010). 

172. Russian Outreach, supra note 132. 

1 73 . Election Results, supra note 131. 



198 INDIANA LAW REVIEW [Vol. 44:161 



needs among the city's multiple immigrant populations. 174 Designed both as a 
Title VI compliance measure and as a civic engagement tool, the plan contains 
a clear commitment to the elimination of language barriers, a commitment that 
"stems from overall city goals of responsive government, community 
engagement, and customer service." 175 The plan also states that "[a]s residents, 
workers or visitors who contribute to city life, people with limited English 
proficiency are entitled to fair and equal access to service," reflecting the plan's 
parallel anti-discrimination objectives. 176 The plan contains detailed 
implementation guidelines, including formulas for language coverage, timelines 
for city departments — including the city clerk's office, which is charged with the 
administration of local elections — to develop departmental implementation plans, 
and overall oversight by the city's multicultural services coordinator, housed in 
the Minneapolis Department of Civil Rights. 177 Services such as language lines 
and translated websites cut across areas, including voter assistance, to cover 
Hmong, Somali, and Spanish. 178 

The City and County of San Francisco have a longstanding commitment to 
recognizing immigrants' civil rights and coordinating multilingual services. 
Election officials there have employed trilingual ballots in Chinese, English, and 
Spanish since the 1 970s. In addition, the city and county provide translated voter 
education materials to other immigrant groups. San Francisco's fifteen-member 
immigrant rights commission was created in 1997 as an advisory body to the 
mayor and the board of supervisors with a mission to "[i]mprove[,] enhance[], 
and preserve[] the quality of life and civic participation of all immigrants in the 
City and County of San Francisco." 179 The commission has oversight over the 
implementation of San Francisco's language access ordinance, which was 
originally enacted in 2001 as a broad language rights policy designed to 
guarantee that municipal services, including services in the department of 
elections, are accessible to limited-English-speaking residents. 180 The language 
access ordinance contains coverage formulas paralleling the Act's section 203 
provisions, but it makes them applicable to any language group. 181 The ordinance 
also contains a full set of implementation measures: oral assistance and written 
translations of city documents; dissemination of multilingual state and federal 



1 74. Minneapolis in Any Language, supra note 1 35, at 1 0. 

175. Id. at 4. 

176. Id. 

177. Mat 39-42. 

178. Id. at 42. 

179. City & Cnty. of S.F. Immigrant Rights Comm'n, http://www.sfgov2.org/index. 
aspx?page=120 (last visited Oct. 17, 2010). 

180. S.F., Cal., Admin. Code §§ 91.1-18 (municode current through March 2010). The law 
was originally called the Equal Access to Services Ordinance but was renamed in 2009. S.F., Cal. 
Ordinance 202-09 (Aug. 28, 2009). 

181. S.F., Cal., Admin. Code § 91.2. Section 91.2(k) defines a "Substantial Number of 
Limited English Speaking Persons" as "either 10,000 City residents, or 5 percent of those persons 
who use the Department's services." Id. 



2010] LANGUAGE ASSISTANCE 199 



documents; compliance plans for individual city departments; and enforcement 
mechanisms and complaint procedures for the public. 182 The San Francisco 
Office of Civic Engagement and Immigrant Affairs, an administrative arm of 
local government, serves as a centralized infrastructure for providing technical 
assistance and coordinating language services across departments. 183 

Not all states and cities that provide language assistance to voters employ 
immigrant advisory bodies or comprehensive language rights plans, but the 
growth of immigrant populations has necessitated the coordination of services to 
local residents, whether they are voters or non-citizens. Voter education and 
electoral assistance have become two of the many manifestations of language 
policies and practices that promote the civic engagement of limited-English 
proficient populations. Immigrant communities will continue to expand 
throughout the country, but local governments will ultimately face difficult 
choices in how they incorporate limited-English-speaking immigrants into civic 
life. Indeed, the future of many cities and suburbs may turn on whether local 
governments opt to be more inclusive and tolerant of language differences or 
whether they choose to employ English-only laws and other policies that lead to 
linguistic exclusion and disenfranchisement. 

Conclusion 

State and local language assistance policies have proven to be important 
complements to the structural remedies of the Act, but the needs of many voters 
requiring oral assistance and translations of election materials may still be 
unaddressed or underserved. The obligation to meet these needs should be one 
shared by all levels of government, but whether more jurisdictions ultimately 
choose to take on these responsibilities remains to be seen. Nevertheless, as 
immigrant populations continue to grow and more local governments move 
toward developing election policies that include language assistance for their 
limited-English proficient citizens, the norms of language accommodation should 
solidify and extend to more jurisdictions. Congress and the federal government 
may in time follow the lead of local governments and begin treating language 
assistance as an essential practice that ensures meaningful access to the vote 
rather than merely as a remedy for past discrimination. Local voting rights laws 
will no doubt continue to fuel an agenda that envisions accommodation and civic 
engagement policies as critical investments in the nation's future. 



182. Id. §§91.4-11. 

183. Id. §91.14. 



Reinventing Voting Rights Preclearance 



Kareem U. Crayton* 



"The law was never passed 
But somehow all men feel they're truly free at last 
Have we really gone this far through space and time, 
Or is this a vision in my mind?" 1 

"[W]e cannot chase our highest ideals unless they are grounded in 
workable, practical, responsible self-governance." 2 

Introduction 

The more things change with Voting Rights Act (VRA) politics, the more 
they seem stubbornly stuck in place. When President Bush signed into law the 
Voting Rights Act Reauthorization and Amendments Act of 2006, observers 
marked the moment as a political triumph. 3 Given the long odds of passing the 
legislation, there was surely good reason to celebrate. Each of the law's previous 
renewals occurred when Democrats controlled at least one chamber of Congress. 4 
During the previous renewal in 1 982, House Democrats managed to move the bill 
through a Republican Senate with compromises that ultimately won the 
President's support. 5 Few expected that a process dominated by Republicans 
would produce a civil rights statute that conservatives often assailed for 



* Professor of Law, The University of North Carolina School of Law. 

1 . Stevie Wonder, Visions, on INNERVISIONS (Motown Records 1973). 

2. Vice President Albert Gore, Remarks at the International Reinventing Government 
Conference (Jan. 14, 1999) (transcript available at http://govinfo.library.unt.edu/npr/newsroom/ 
interego.html). 

3. 42 U.S.C. § 1973c (2006). At the official signing ceremony for the VRA extension, 
President Bush was joined by a delegation of civil rights leaders, some of whom were present at the 
initial signing of the legislation by President Johnson in 1965. See Laurie Collier Hillstrom, 
Defining Moments: The Voting Rights Act of 1965, at 122-23 (2009); Hamil R. Harris & Michael 
Abramowitz, Bush Signs Voting Rights Act Extension; President Vows to Build on 'Legal Equality' 
Won in Civil Rights Era, WASH. POST, July 28, 2006, at A3 ; E. W. Kenworthy, Johnson Signs Voting 
Rights Bill, Orders Immediate Enforcement; 4 Suits Will Challenge Poll Tax, N. Y. TIMES, Aug. 7, 
1965, at 1, available at http://partners.nytimes.com/library/national/race/080765race-ra.html. 

4. The most relevant temporary provisions of the Voting Rights Act were extended by 
Congress in 1970, 1975, and 1982. See Nathaniel Persily, The Promise and Pitfalls of the New 
Voting Rights Act, 1 17 Yale L.J. 174, 179-80 (2007). In some of these instances, Congress did 
enact important substantive changes, such as extending these protections to new jurisdictions and 
to protect new groups of citizens. However, the thrust of the debate around these amendments 
largely followed the template of concerns first raised by opponents in 1965. See id. 

5. See generally J. Morgan Kousser, The Voting Rights Act and the Two Reconstructions, 
in Controversies in Minority Voting: The Voting Rights Act in Perspective 135 (Bernard 
Grofman & Chandler Davidson eds., 1992). 



202 INDIANA LAW REVIEW [Vol. 44:201 



offending principles of color-blindness and federalism. 

This latest VRA extension effort was largely characterized by a defensive 
strategy. Supporters mostly concerned themselves with preserving the rules 
collectively known as the "preclearance" regime 6 — the administrative oversight 
system originally crafted to assure that state and local jurisdictions with a history 
of government-ratified racial discrimination do not violate the Fifteenth 
Amendment's racial fairness principle. 7 Most observers agree that during the last 
forty years of its enforcement, the preclearance regime has promoted 
improvements in political participation and office-holding for racial minority 
groups and their preferred candidates. 8 Relying heavily on these and other 
factual findings, overwhelming bipartisan majorities in both houses of Congress 
ultimately agreed to reauthorize the oversight system for another twenty-five 
years. 9 

The architects of the 2006 legislation deserve great credit for passing a bill 
in a largely unfriendly political context. However, their largely preservative 
strategy carried with it an important practical substantive cost. By limiting 
changes to eliminating the most politically offensive judicial interventions of the 
law, Congress essentially left in place some pathologies that have plagued the 
system during the last few decades. More importantly, the renewal process again 
has left crucial questions about the system's ends and means unanswered. Forty 
years into the "temporary" era of federal administrative review of state election 
systems, Congress has avoided the two most vexing questions about the 
preclearance system: When, if ever, should this oversight structure reach its end- 
point? And if there is to be an end, how will we know when we have reached it? 

This Article offers a conceptual framework called "reinventing" preclearance 



6. Throughout this Article, I use the terms "preclearance" and "Section 5" to refer to a broad 
set of provisions in the Voting Rights Act that define a special remedy that protects racial minority 
against the enactment of new laws and practices that would deny or abridge the right to vote with 
respect to race. I describe the preclearance remedy at greater length in later sections, but it is 
helpful to speak with precision at this stage. The term "preclearance" refers to the special remedy 
that "freezes" existing voting laws in certain designated state and local jurisdictions with a pattern 
of depressed participation in the electoral arena. See Reno v. Bossier Parish Sch. Bd. {Bossier II), 
528 U.S. 320, 323 (2000). In order to make changes to existing law, the jurisdiction must receive 
permission from the Justice Department or the U.S. District Court in Washington D.C. Id. In either 
case, the state must show that its proposed change "does not have the purpose and will not have the 
effect of denying or diluting the right to vote on account of race or color." Id. at 328 (quoting 42 
U.S.C. § 1973c (2006)).. 

7. U.S. Const, amend. XV, § 1 ("The right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any State on account of race, color, or previous 
condition of servitude."). 

8 . See generally Quiet Revolution in the South (Chandler Davidson & Bernard Grofman 
eds., 1994) (offering an empirical assessment of state level political advancement for minority 
communities as a result of the VRA's adoption and enforcement). 

9. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246,120 Stat. 577. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 203 



that responds to these pathologies and helps to address these perplexing 
questions. Taking the reorganization of basic governing structures as a starting 
point, this Article proposes adjustments to Section 5 that provide a more clear, 
effective, and lasting means of enforcing voting rights. Distinct from other 
reform proposals, reinvention identifies and embraces a specific systemic 
aim — transforming political institutions. The key to this proposal is its practical 
benefits for both sides in the current preclearance debate. The idea satisfies the 
conservative goal of reducing federal presence in a traditionally state-run area of 
policymaking. At the same time, reinventing preclearance also provides some 
assurances to those who favor more robust tools of voting rights enforcement 
than those that exist under the current regime. 

Part I of this Article reviews some of the major pathologies associated with 
the current preclearance process. Despite its many benefits and positive results, 
the review process in Section 5 imposes particular burdens on each of the major 
stakeholders in covered jurisdictions. Some of these pathologies result from the 
intentional policy choices by Congress and the courts in framing the VRA, while 
others are unintentional consequences of the ground-level actors who are 
involved in the development and management of local elections. Today, very 
few people are entirely satisfied with how the contemporary system works, even 
though the recent extension of the VRA was vigorously defended by civil rights 
advocates. 

Part II points out that the result of the most recent legislative amendments 
left many of these pathologies unaddressed. This Part addresses some of the 
academic criticism highlighting the most crucial issues that Congress either 
ignored or sidestepped in 2006. For fear of dismantling an already fragile 
bipartisan majority favoring renewal, preclearance supporters focused their 
energy on undoing the most troubling judicial interpretations of the statute. The 
extension of the statute missed an opportunity to address important long-term 
questions about the VRA, which the Supreme Court provocatively noted in 
Northwest Austin Municipal Utility District Number One (NAMUDNO) v. 
Holder } Q These developments provide salient reasons for Congress to revisit its 
fashioning of the preclearance system. 

Part III presents the theoretical grounding for an invitation to commence a 
new approach to preclearance. It lays out the concept of "reinventing" 
preclearance in greater detail, focusing on its sensitivity to local agency concerns. 
Drawing partly on the role that the National Partnership for Reinventing 
Government played in streamlining federal regulation in the 1990s, this part 
suggests how traditional reinvention has insights relevant to preclearance 
politics. In contrast to legislative efforts that only tinker with the existing 
structure of the preclearance system, "reinventing" the preclearance regime 
requires a deeper, more fundamental examination of the remedy's purposes and 
methods. A more ambitious and likely more fruitful approach is to start from the 



10. 129 S. Ct. 2504, 251 1-12 (2009) (noting that the VRA data are thirty-five years old and 
that conditions have significantly improved since the Court upheld provisions of the VRA in the 
past). 



204 INDIANA LAW REVIEW [Vol. 44:201 



principle that the preclearance mechanism has to focus on the goal of 
transforming political structures in state and local governments. 

Finally, Part IV offers some specific ideas about how a reinvented 
preclearance system can operate in practice. To demonstrate that this idea is both 
politically viable and practically effective, I offer examples of flexible provisions 
that Congress might adopt to achieve the goal of reinventing the preclearance 
system. While not every state needs to adopt an identical reform, this example 
of innovative lawmaking at the state level can effect a substantial improvement 
in the protections for minorities. 

I. Three Preclearance Pathologies 

A. Preclearance 101: A Primer on the Current System 

The terms "preclearance system" and "Section 5" both refer to a set of 
administrative processes found in the VRA designed to remedy racial 
discrimination in the political arena. 1 ' For designated places, the provision calls 
for prior review of proposed changes in state and local election law by the federal 
government. 12 Preclearance is a specific response to years of evasion of federal 
court orders and executive enforcement actions by Southern jurisdictions. 13 
Congress resolved to end this evasive behavior by effectively "freezing" local 
election laws and placing federal officials in an oversight role. 14 Some courts 
have characterized the preclearance system as the "shield" of the VRA, which 
protects voters against future practices and procedures that would enact new 
forms of discrimination in the election arena. 15 

There are numerous details that would be covered in any comprehensive 
discussion of the internal workings of this provision, but a basic understanding 
for present purposes requires attention to its three major components of the 
provision — its trigger, its scope, and its standard of review. 16 Elsewhere, I have 
employed these three concepts to expound at greater length on the peculiar ways 
that the preclearance remedy has evolved over time due to a series of related 



11. See Bossier II, 528 U.S. at 323. See generally HlLLSTROM, supra note 3, at 75-123 
(outlining the events leading up to the VRA's passage and its subsequent amendments). 

12. See Bossier II, 528 U.S. at 323. 

13. See South Carolina v. Katzenbach, 383 U.S. 301, 336 (1966) (noting that "voting officials 
have persistently employed a variety of procedural tactics to deny Negroes the franchise, often in 
direct defiance or evasion of federal court decrees"). 

14. See generally Quiet REVOLUTION IN the SOUTH, supra note 8, at 30-32; Kousser, supra 
note 5. 

15. See, e.g., Katzenbach, 383 U.S. at 318. The Supreme Court noted that "Congress had 
reason to suppose that" states covered by the VRA might continue resorting to "the extraordinary 
stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting 
discrimination in the face of adverse federal court decrees. Id. at 335. 

1 6. See Kareem U. Crayton, Interactive Pre-Clearance Development, 27 St. LOUIS U. Pub. 
L.Rev. 319, 324-40(2008). 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 205 



legislative and judicial interventions. 17 

The first element of the remedy is its triggering mechanism. Unlike the civil 
litigation remedy of the VRA contained in Section 2, the preclearance system 
identifies parts of the country where Congress originally observed a heightened 
pattern of evasion. 18 The text of the statute says a great deal about the targeted 
places where the law applies. 19 Its triggering formula relies upon objective, 
voting-related factors to specify "covered" jurisdictions. For a state or local 
entity to fall within the ambit of the system, federal officials must find two 
things: (1) that a state's laws contain one of a limited set of voting prerequisites; 
and (2) that registration and participation rates in certain national elections fall 
below a threshold percentage of the voting age population. 20 Congress has 
gradually expanded the reach of the triggering provision since 1965, bringing 
much of the Southwest (and with it, attention to language discrimination) into the 
preclearance regime. 21 

If a state or local jurisdiction is deemed subject to the system, the statute 
imposes a submission requirement. 22 Specifically, the law mandates that all 
proposed changes in laws related to voting be presented to federal officials for 
review and approval. 23 For most of the last four decades, the courts have 
construed the scope of "election-related law" relatively broadly. 24 No such 
legislation that is adopted in a covered jurisdiction may be enforced without the 
permission of the federal government. 25 This provision of the VRA shifts the 
balance of authority between state and federal government, since election 
management is traditionally an area of control for the states. 26 Even after the 
normal legislative process has been completed in a covered state, local officials 



17. See id 

18. See Holder v. Hall, 512 U.S. 874, 884 n.2 (1994) (comparing the application of Section 
2 to Section 5). 

19. See 42 U.S.C. § 1973b(a) (2006 & Supp. 2008). 

20. Crayton, supra note 16, at 325-26. 

21. See Samuel Issacharoff et al. , The Law of Democracy : Legal Structure of the 
Political Process 470-71 (3d ed. 2007) (noting that many Southwestern states had to provide 
bilingual election materials in order to comply with Section 5). 

22. See Crayton, supra note 16, at 329. 

23. See id. 

24. See Allen v. State Bd. of Elections, 393 U.S. 544, 566 (1969) ("Congress intended to 
reach any state enactment which altered the election law of a covered [s]tate in even a minor way."); 
Crayton, supra note 16, at 330. 

25. 42 U.S.C. § 1973b (2006 & Supp. 2008). 

26. See Nw. Austin Mun. Util. Dist. No. One v. Holder, 1 29 S. Ct. 2504, 25 1 1 (2009) (noting 
that Section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking 
[and] imposes substantial 'federalism costs' . . . that have caused [m] embers of this Court to express 
serious misgivings about the constitutionality of § 5") (internal quotations and citations omitted); 
South Carolina v. Katzenbach, 383 U.S. 301, 334 (1966) (noting that preclearance is an 
"uncommon exercise of congressional power"). But see Presley v. Etowah Cnty. Comm'n, 502 
U.S. 491 (1992). 



206 INDIANA LAW REVIEW [Vol. 44:201 



must present their proposal to either the Department of Justice or the U.S. 
District Court in Washington, D.C. for approval. 27 

The substantive heart of the preclearance process is the standard that federal 
officers use to examine proposed changes. The Department of Justice (DO J) has 
the power to block any proposed change in law that has "the purpose . . . [or] the 
effect of denying or abridging the right to vote on account of race or color." 28 
The test embodied in this standard calls attention to the jurisdiction's intent along 
with the extent to which the plan's likely results impose negative effects on 
minority voting power. And importantly, the standard places the burden of proof 
on the covered jurisdiction. 29 Thus, a proposed change cannot proceed without 
affirmative evidence that its purpose and effect does not "deny or abridge" the 
right to vote. This analysis has experienced a different trajectory since the courts 
have pared back the standard. Over the last thirty years or so, the standard has 
been that the government may object only to proposed changes that impose a 
retrogressive effect (i.e., worsening the position of minority political power). 30 

I have argued in previous writing that the development of the preclearance 
system has followed a somewhat mixed path, largely due to the interaction 
between the judicial and legislative constructions of the remedy. 31 Through 
judicial interpretation and legislative amendment, these aspects of the law have 
developed in some surprising ways over time. While the scope of the 
preclearance provision has largely expanded over time, the substantive standard 
to be applied in federal review has almost uniformly narrowed. 32 Even as more 
jurisdictions and more types of election changes are submitted to the federal 
government, the level of scrutiny applied in the review process has diminished 
substantially. 

B. The Players in Preclearance 

Before discussing the specific pathologies in the current preclearance system, 
a brief discussion of the goals of the major actors involved in the process is in 
order. Generally speaking, there are three primary stakeholders in jurisdictions 
subject to the preclearance system: (1) the agency officials who administer 
election rules for the jurisdiction; (2) the racial minority group(s), including (but 
not limited to) their elected representatives; and (3) the political parties. 33 The 



27. See Bossier II, 528 U.S. 320, 323 (2000). 

28. Miller v. Johnson, 515 U.S. 900, 906 (1995) (citing 42 U.S.C. § 1973c). 

29. Reno v. Bossier Parish Sch. Bd. (Bossier I), 520 U.S. 471, 478 (1997) (noting judicial 
preclearance); 28 C.F.R. § 51.52(a) (2010) (noting Attorney General preclearance). 

30. Bossier II, 528 U.S. at 329. It should be noted that the standard for prohibited intent in 
Section 5, however, has been more varied. 

3 1 . See Crayton, supra note 16, at 335-41 ; see also Michael J. Pitts, What Will the Life of 
Riley v. Kennedy Mean for Section 5 of the Voting Rights Act?, 68 Md. L. Rev. 481 (2009). 

32. Crayton, supra note 16, at 325. 

33. See, e.g., Luis Fraga & Maria Ocampo, More Information Requests and the Deterrent 

Effect of Section 5, in VOTING RIGHTS ACT REAUTHORIZATION OF 2006: PERSPECTIVES ON 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 207 



preferences and goals of these different groups can sometimes overlap or 
coincide, but the interplay of their strategies often results in competitive and (at 
times) obstructive behavior. 

The local civil servants who manage the election process in a covered 
jurisdiction often find themselves in an unenviable and thankless position. If it 
is true about voting rights politics that "someone always gets screwed," 34 then 
those who must execute the policy choices crafted by legislative and executive 
officials quite consistently rank near the top of the list of candidates. On one 
hand, they are primarily responsible for preparing and submitting the 
jurisdiction's proposed change to the federal government for review. Yet doing 
their job properly also invites criticism and litigation threats coming from at least 
one of the other two sets of actors who find themselves aggrieved by the 
jurisdiction's policy choices. 35 

While complying with the submission itself is not terribly burdensome, civil 
servants must develop and produce evidence showing that the proposed election 
change does not run afoul of the prohibitions in Section 5. 36 Election 
administrators take their charge seriously, even if the political actors who vote 
on proposed changes are busy pursuing their own distinct ends. So long as they 
are not themselves captured by ideological forces, these actors usually maintain 
a neutral view with respect to adopting a particular election approach. Their 
foremost desire out of any policy submission is a predictably successful outcome 
in the federal review process. 37 As some research has shown, covered 



Democracy, Participation, and Power oftheVotingRightsAct 47, 51 (Ana Henderson ed., 
2007). While Fraga and Ocampo's framework includes the Department of Justice as a major actor, 
the framework in this Article focuses on the relationship among the parties within the jurisdiction. 
The present model addresses the processes leading to a jurisdiction's submission of a preclearance 
proposal to the federal government, which is largely dependent upon the relationships among the 
actors who reside within a given jurisdiction. 

34. See Pamela S. Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 
Stan. L. Rev. 731, 733 (1998). Karlan states in her description of the redistricting process that 
"[r]edistricting, like reproduction, combines lofty goals, deep passions about identity and instincts 
for self-preservation, increasing reliance on technology, and often a need to 'pull [and] haul' rather 
indelicately at the very end. And of course, it often involves somebody getting screwed." Id. 
(internal citation omitted). 

35. See generally Daniel P. Tokaji, The Future of Election Reform: From Rules to 
Institutions, 28 Yale L. & Pol'y Rev. 125 (2009). 

36. See Bossier II, 528 U.S. 320, 323 (outlining the burdens and requirements necessary to 
successfully pass preclearance). 

3 7 . See, e.g. , Raquel A. Rodriguez, Reflections of Another Bush v. Gore Lawyer, 64 U. Miami 
L. Rev. 631, 636 (2010) (stating that legislators and election officials are faced with challenge of 
creating policies that "do not create inordinate burdens on the right to vote while enacting laws to 
ensure that elections are fair, honest, and efficient"); see also HEATHER K. Gerken, The 
Democracy Index: Why Our Election System Is Failing and How to Fdc It 16 (2009) 
(stating that election officials also face the pull of the political parties they are affiliated with 
because "[t]he problem is that election officials depend on their party for their jobs"); Tokaji, supra 



208 INDIANA LAW REVIEW [Vol. 44:201 



jurisdictions tend to withdraw or modify a proposed change even in the face of 
federal responses like More Information Requests. 38 Even the more subtle 
suggestion of an explicit rejection deters submissions. Additionally, these actors 
desire latitude to implement the proposed election changes in order to satisfy the 
demands of local political authorities and the jurisdiction's governing law. 39 

A second important set of players in the preclearance jurisdiction is the racial 
minority community, the intended beneficiaries of the preclearance regime. 
Minority voters desire a relatively robust federal enforcement approach that 
affords strong protections against discrimination. In practice, this position 
encourages frequent federal objections to proposed changes whose purpose or 
effect cause even the most subtle harms to minority political interests. This 
community often seeks improvements in the levels of representation in elected 
offices and promotes substantive policies that expand access to voting, especially 
for members of the minority group. 40 Increasingly, this category of stakeholders 
includes multiple racial groups whose political interests may not always coincide. 
The goals of the minority community are often (but not always) conveyed by the 
political officials who are elected to represent them as well as by private 
organizations like the Legal Defense Fund, whose members often work to 
articulate the political interests of minority communities. 41 

Finally, the traditional political parties are an ever-present and significant 
category of actors in almost every preclearance-covered jurisdiction. 42 Since 



note 35, at 133 (stating that election official have two interests that are often conflicting: (i) their 
"professional obligation to discharge their duties impartially," and (ii) their self interest in 
portraying loyalty to their party in order to ensure their own re-election to a higher office). 

38. Fraga & Ocampo, supra note 33, at 65-67. 

39. Id. 

40. See, e.g., Brief of the Congressional Black, Hispanic, and Asian Pacific American 
Caucuses et al. as Amici Curiae Supporting Appellees at 21, Nw. Austin Mun. Util. Dist. No. One 
v. Holder, 129 S. Ct. 2504 (2009) (No. 08-322). 

41 . Since 1940, the Legal Defense Fund 

has been a pioneer in the struggle to secure and protect the voting rights of African- 
Americans. LDF has been involved in nearly all of the precedent- setting litigation 
relating to minority voting rights. LDF's political participation group uses legal, 
legislative, public education and advocacy strategies to promote the full, equal and 
active participation of African- Americans in America's democracy. 

Political Participation, LEGAL DEFENSE FUND, http://naacpldf.org/category/political-participation 

(last visited Nov. 14, 2010). 

42. See, e.g., Morse v. Republican Party of Va., 517 U.S. 186, 213 n.27 (1996) (noting that 
political parties played an integral role in continuing discriminatory practices before the VRA); 
Nathaniel Persily, Options and Strategies for Renewal of Section 5 of the Voting Rights Act, in The 
Future of the Voting Rights Act 223, 227-28 (David L. Epstein et al. eds., 2006) (noting that 
the "politicization of the preclearance process" has resulted in a "great risk that political appointees, 
of whichever political affiliation, at the DOJ will deny preclearance to changes that might be 
detrimental to their party, while granting it to laws that might retrogress with respect to minority 
voters yet benefit their party"). 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 209 



decisions about the design of electoral structure are inherently political issues, 
the parties heavily involve themselves in the shaping of the system. This set of 
actors includes both elected officials responsible for governing the jurisdiction 
as well as the informal operatives who run the supporting party organizations. 
As much as with any substantive debate about public policy, one's ideological 
alignment tends to drive the terms of the debate on a proposed election change 
that is subject to preclearance. The inherent competition among the parties is 
perhaps at its zenith in the context of redistricting decisions, where the share of 
each party's governing power is at stake. 43 

On redistricting and other election-related issues, these ideological groups 
struggle to maintain or improve the probability that their candidates will control 
government. Like racial minority groups, partisan agents also fight for election 
policies that tend to improve their standing among the electorate — especially 
those voters who consistently support their candidates in elections. This 
competition can sometimes become complicated when one takes account of the 
intersecting role that race plays in the pursuit of the party's interest. When a 
significant portion of the party's membership represents a majority-minority 
constituency, pursuing the party's overall interests may not entirely coincide with 
what benefits the racial minority community. 44 However, the simplest means of 
understanding the interests of the political parties is that each sets out to pursue 
a greater share of political power by disadvantaging the others. 

C. Systemic Pathologies 

There are many positive things to say about the benefits associated with 
preclearance, much of which are contained in the rather voluminous record 
supporting the most recent renewal of the VRA. 45 Despite its multiple benefits, 
though, the preclearance system also has encouraged some troubling pathologies 
in the ways that covered jurisdictions address election policy changes. These 
local politics are often characterized by strategies that impede the development 
of new election policies. Over time, this paralysis prevents the jurisdiction from 
advancing toward a more permanent arrangement that embodies the anti- 
discrimination norms that the preclearance system commands. Below, I identify 
three particular problems that contribute to the longstanding stalemate that exists 
among the actors in preclearance jurisdictions. 

The first pathology in preclearance jurisdictions is the lack of serious 
attention to long-range goals in election policymaking. Decisions about public 
policy, either in legislatures or in operating agencies, tend to involve both short- 



43 . See Persily, supra note 42, at 227-28. While it is certainly the case the party involvement 
is most significant during redistricting, the parties are also concerned with the more common 
policies like the adoption of new voting equipment or location of polling places that are also subject 
to preclearance review. 

44. Id at 227 (noting that there is a risk that DOJ officials will preclear laws that benefit their 
own party, regardless of how it impacts racial disparities). 

45. See generally Persily, supra note 4. 



210 INDIANA LAW REVIEW [Vol. 44:201 



term and long-term considerations. 46 In the election arena, an example of a short- 
term consideration might involve the possible effects of increasing or decreasing 
the number of polling places or the percentage of citizens who can cast a ballot 
in the next election. On the other hand, adopting a new type of polling 
machinery at every polling place in a jurisdiction may require attention to effects 
that may only materialize after a series of elections. Preclearance stakeholders 
rarely reach consensus about the types of policy proposals that require an 
assessment of long-range factors. 47 Their decisions tend to reflect more limited 
applications so that they do not entrench a particular election device or procedure 
for an extended period. 48 

This pattern of decisionmaking is linked to a pair of features inherent to the 
current preclearance system. One of these features is the indeterminate nature 
of the preclearance standard in the federal review process. The standard for 
reviewing changes has shifted substantially due to a lingering dispute between 
the judicial and legislative branches. 49 As each branch has taken its turn 
construing the statute, the standard has evolved from a strong emphasis on 
proportionality to a more limited concern with whether the change diminishes 
minority political power. 50 Election administrators tend to encourage the 
adoption of more limited changes as the best way to avoid a preclearance 
challenge. 51 For their part, minority communities and political parties also tend 
to rely upon short-term thinking. With unpredictable constructions of the federal 
test for approving election changes, an actor who is unsatisfied with the existing 
standard might prefer to hold out for a later, more favorable climate to pursue his 
or her preferred election policy. 

Another reason for the absence of long-range thinking is the absence of a 
guiding principle for assessing a proposed policy. Policy decisions with longer 
life spans or broader application can invoke greater scrutiny in the federal review 
process than more discrete ones. 52 The effects of such discrete changes are often 
readily apparent, which means that federal review is a more straightforward 
matter. 53 By contrast, major structural changes to a voting system do not usually 
have fully discernible effects. The uncertainty in the latter set of changes leaves 
substantial room for debate. The difficulty in stating long-term effects on 



46. See generally Tokaji, supra note 35. 

47. See id. at 141-42. 

48. Mat 145-46. 

49. See generally Crayton, supra note 16. 

50. Id. at 321. 

5 1 . See Tokaji, supra note 35, at 136-37. 

52. See Katherine Culliton-Gonzalez, Time to Revive Puerto Rican Voting Rights, 19 
Berkeley La Raza L.J. 27, 43 (2008) (stating that "Section 5 provides for a high level of 
scrutiny — it requires that the DOJ conduct an advance review of any proposed changes in voting 
procedures to determine if they would have a discriminatory impact. Section 5 covers jurisdictions 
through findings of a history of racial discrimination in voting through the use of discriminatory 
tests or devices"). 

53. See id. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 2 1 1 



political power with precision forces federal authorities to project these changes 
over time, which leaves ample room for uncertainty and dispute. To avoid an 
uncertain review outcome or a prolonged review process, local authorities 
running preclearance advocate limited changes. 54 The additional procedural steps 
could seriously complicate (and most certainly will delay) the jurisdiction's 
effort to enact change. 

A second preclearance pathology is the propensity toward oppositional 
relationships in the consideration of new policy. Adopting new election law in 
a covered jurisdiction typically requires an alignment of most (if not all) of the 
various preclearance stakeholders. 55 However, these interests are not especially 
inclined toward the norm of cooperation. Aside from the usual partisan 
competition that shapes all political decisionmaking, preclearance adds an extra 
constraint because each of the stakeholders holds the ability to either stall or 
block the adoption of a new policy. 56 The principle of bipartisanship is therefore 
crucial to avoid floor fights and subsequent litigation over the legitimacy of a 
new law. Furthermore, the consent of the relevant racial minority group often 
proves crucial to the success of a policy. 57 This is so because the DOJ regularly 
consults with leaders within the local minority community when considering the 
likely effects of the proposed change. 58 

For both the partisan and racial stakeholder groups, the conventional 
approach for assessing a policy idea is to focus on self-interested and zero-sum 
concerns. Part of this surely is rooted in a not-so-distant past in which interests 
were in violent opposition to each other. However, it is also due to the absence 
of generally accepted ways to measure the benefits and costs associated with the 
proposed changes. In other words, the terms of the debate themselves are 
disputed. For any given group, the overall effect of a given proposal depends 
upon the perceived advantages for that particular group. 59 Further complicating 
the matter, these debates are often regarded as zero-sum endeavors; one group's 
potential advantage under a new regime is automatically viewed in terms of 
another's political detriment. Thus, the result is the politics of trench 
warfare — where any concessions are tantamount to surrender. Few discussions 



54. See Ellen D. Katz, Congressional Power to Extend Preclearance: A Response to 
Professor Karlan, 44 Hous. L. Rev. 33, 46-47 (2007) ("Indeed, the Department of Justice has 
objected more often to changes proposed at the local level than to statewide changes such as 
congressional redistricting plans."). 

55. See Tokaji, supra note 35, at 128. 

56. Id. 

57. See Luis Fuentes-Rohwer & Guy-Uriel E. Charles, Preclearance, Discrimination, and 
the Department of Justice: The Case of South Carolina, 57 S.C. L. REV. 827, 845-46 (2006) 
(stating that the DOJ considered the concerns of minority voters and the impact of electoral 
structures on communities of color). 

58. See id. at 853. 

59. See Tokaji, supra note 35, at 135 ("Where there is ambiguity over which forms of 
identification should be allowed or how states may go about purging voters from registration lists, 
for example, it is difficult to imagine Republicans and Democrats reaching agreement."). 



212 INDIANA LAW REVIEW [Vol. 44:201 



about a specific proposal employ a shared language of assessing the merits for 
the election system as a whole. 60 

Put another way, the legislative process in a preclearance jurisdiction turns 
on "veto points" that are available to each of the relevant stakeholders. The 
negative power to derail any proposed change encourages oppositional behavior 
from others in discussions about policy. 61 A political party that fervently 
disagrees with a proposed change will either credibly threaten to defeat the 
proposal in a vote or to later challenge it in court. 62 For racial minority groups, 
expressing their displeasure to federal authorities who investigate ajurisdiction's 
proposal can potentially draw a request for additional information or a formal 
preclearance objection. 63 Additionally, their strong opposition could signal a 
later challenge in federal court under a different provision in the VRA. 64 Real or 
perceived disadvantages to any preclearance stakeholder are likely to doom any 
proposed change in the law. 

The final pathology in preclearance jurisdictions is the lack of policy 
innovation. The inclination toward short-term decisionmaking along with the 



60. See Terry M. Ao, When the Voting Rights Act Became Un-American: The Misguided 
Vilification of Section 203, 58 ALA. L. REV. 377, 394 (2006). Ao notes that there were instances 
of minority group unity during the 1982 and 1992 reauthorization processes after opponents of the 
VRA attempted "to drive a wedge between Section 203 and Section 5 (preclearance) supporters and 
thereby [tried] to split the African-American community from the others (despite the fact that other 
minority groups also benefit from Section 5)." Id. However, those minority groups unified once 
they realized that a strong Section 5 and Section 203 would be beneficial for all. Id. 

61 . See Tokaji, supra note 35, at 132. 

62. See id. For example, Democratic officials will fight for policies that "include as many 
voters as possible," while Republican officials will fight against policies that may foster fraudulent 
voting. Id. at 133. As the politics of redistricting in the 1990s demonstrated, states with divided 
governments often produced stalemates that required judicial interventions to establish district 
plans. 

63. See Daniel P. Tokaji, If It 's Broke, Fix It: Improving Voting Rights Act Preclearance, 
49 How. L.J. 785, 837 (2006). Tokaji notes that even if there is considerable influence by racial 
minority groups, 

[tjhere is also the problem of determining which civil rights groups can best serve as the 
'proxy' of minority voters in a given community, so as to justify deference to solutions 
that these groups negotiate with state or local election officials. One can easily imagine 
dueling groups emerging, each claiming to represent the interests of the minority 
community, yet taking opposing positions on particular issues. 
Id. 

64. See, e.g., Fuentes-Rohwer & Charles, supra note 57, at 853-54. In South Carolina, a 
delegation of black citizens objecting to proposed changes in election standards influenced the DOJ 
to move from a provisional objection to part of the proposed election plan to a complete objection 
to the whole proposed plan. The data show that the DOJ frequently issued objections while citing 
the influence of communities of color in making those decisions. If this trend continues, then 
challenges in federal court are a likely progression from current administrative oppositions from 
minority communities. Id. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 2 1 3 



adversarial nature of the legislative process in preclearance jurisdictions tend to 
chill any serious effort to pursue innovative election changes. This third 
pathology is especially lamentable in the wake of several controversial elections 
at the national and statewide levels. 65 Even with significant federal financial 
resources available for jurisdictions to experiment with improving the election 
process, preclearance jurisdictions have tended to shy away from more ambitious 
proposals. Rather than exploring new ways to prevent the kinds of election day 
train wrecks that result in extended litigation and political wrangling, 
preclearance jurisdictions tend to employ a minimalist approach to policymaking. 
As it is practiced, the current preclearance system favors the maintenance of the 
status quo, which leaves little room for creativity in the development of election 
policy. 66 

While the lack of innovation is surely evident with respect to the minority 
community and political parties, its effects are most troubling for the officials 
who manage elections in preclearance jurisdictions. These officials often show 
interest in exploring new methods of balloting and administration; 67 however, the 
very strict enforcement of the preclearance submission requirement coupled with 
the inclination of the stakeholders toward adversarial interactions dissuades these 
actors from proposing or pursuing new approaches. 68 The result is that possible 
improvements to the election system are rarely raised to avoid conflicts among 
the stakeholders. These experts are the very persons charged with developing a 
system that is both reliable and efficient, yet the politics of preclearance can 
sometimes work against these very norms. 



65. See Crawford v. Marion Cnty. Election Bd., 128 S. Ct. 1610 (2008). In this case, the 
Indiana Democratic Party, the League of Women Voters, and other interested voters brought a 
challenge against an Indiana law that required all voters to show a government-issued photo ID 
before casting their ballots. Id. at 1614. The Supreme Court held that the law was valid because 
it was not unreasonable to require photo ID to vote and the law was in line with protecting the 
validity and integrity of the voting process. Id. at 1624; see also Common Cause/Ga. League of 
Women Voters v. Billups, 439 F. Supp. 2d 1294, 1305-06, 1360 (N.D. Ga. 2006) (in which a 
similar voter ID law was upheld in Georgia despite the fact that 300,000 Georgians did not possess 
a valid government-issued photo ID). 

66. See Tokaji, supra note 35, at 1 37 (stating that "[d]espite the significant improvements that 
have occurred since 2000, then, little has changed in regard to the decentralization and partisanship 
of American election administration"). 

67. See Gilda R. Daniels, A Vote Delayed Is a Vote Denied: A Preemptive Approach to 
Eliminating Election Administration Legislation That Disenfranchises Unwanted Voters, 47 U. 
Louisville L. Rev. 57, 74-77 (2008). Especially since the 2000 presidential election, legislators 
and officials have attempted to address the complicated task of correcting the many problems that 
were exposed, such as outdated voting machines, voter purges, and voter discontent. However, 
despite the passage of the Help America Vote Act (HAVA) to help states eliminate punch-card 
voting systems, these efforts have been largely ineffective. Id. 

68. See Tokaji, supra note 63, at 836 (indicating that election officials are even faced with 
the adversarial interests of more than one group within the same minority community who have 
conflicting interests). 



214 INDIANA LAW REVIEW [Vol. 44:201 



II. Why the Amendments Entrench These Pathologies 

A. The Academic Criticism 

Before, during, and after the recent legislative debate on the VRA extension, 
academic commentators had much to say about what happened — and what should 
have happened. Much of the writing on the topic registered discontent with the 
debate in Congress and with the details of the statutory extension itself. 69 Some 
of this work showed sympathy to the VRA sponsors in recognition of the 
challenges they faced in achieving a bipartisan compromise while also racing 
against the clock to pass the bill before an important midterm election. 70 
However, far more of the writing concerned the implications of Congress's 
failure to address unanswered questions and lingering issues. 

1. Clarifying/Redefining Standards. — Some of the criticism highlighted 
lingering ambiguities in the operational concepts found in the statute. The most 
apparent of these is the idea of retrogression, a bedrock test that Congress set out 
to change in its extension. 71 The sponsors of the extension announced the limited 
goal of reversing the Supreme Court's interpretation in Georgia v. Ashcroft. 12 
There, the Court narrowly applied a retrogression analysis to permit the 
elimination of several majority-black legislative districts if the state compensated 
by employing a sufficiently large set of "minority influence" districts. 73 
Congress very clearly rejected the reasoning advanced in Ashcroft and its related 
decisions, returning the law to the original retrogression standard announced in 
the Beer 14 decision (which would have faulted Georgia's proposed plan due to 
its reducing the number of minority-majority districts). 75 

Defending the final statute that Congress produced, Nathaniel Persily tries 
mightily to recast the legislative process to clarify a standard with multiple 
meanings. 76 He finds that the legislative history from the Senate casts great 
doubt on how the courts or the DOJ might apply the retrogression standard in 
practice. 77 Concerned that the Senate's very fractious legislative history revealed 
severe weaknesses in the new standard, Persily suggests that the Court utilize the 



69. See generally Persily, supra note 4; James Thomas Tucker, The Politics of Persuasion: 
Passage of the Voting Rights Act Reauthorization Act of '2006, 33 J. Legis. 205 (2007). 

70. Tucker, supra note 69, at 206- 1 7 (recounting the difficulty involved in gaining bipartisan 
support for the reauthorization of the Act). 

71. Id. at 254. Representative Sensenbrenner, Chairman of the House Judiciary Committee, 
subsequently engaged in a colloquy with Representative Watt to "confirm that determination of the 
retrogression standard was to be made 'without consideration of political party control."' Id. 

72. 539 U.S. 461 (2003). 

73. Id. at 490. 

74. Beer v. United States, 425 U.S. 130 (1976). 

75. Id. at 141. 

76. See generally Persily, supra note 4. 

77. Mat 183, 226-27. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 2 1 5 



more cohesive House report as the best evidence of legislative intent. 78 The 
House report includes a clear, well-reasoned argument in favor of the bill's 
constitutionality, and it rejects any specific definition of the new retrogression 
standard. 79 

Nevertheless, due to the constraints inherent in bipartisanship, even the 
House report contains its share of vagueness. Persily concedes that the report 
sidesteps tough analytical questions about how to define minority political 
power. 80 For example, the retrogression inquiry seems focused on minorities' 
"ability to elect," but it provides no guidance on how the ability-to-elect 
determination should, as an approximation of political power, be made. 81 Fearing 
that this broad and vague standard may permit an overly broad application to 
emphasize those rare elections involving minority candidates with broad cross- 
racial appeal, Persily suggests additional criteria for the "ability-to-elect" 
determination. 82 More specifically, he proposes limiting the application of any 
new standard to a protected group's ability to elect its uniquely preferred 
candidate of choice. 83 Persily further suggests that the standard only apply where 
minority voting cohesion is at a level of ninety percent or more for a candidate 
that minorities prefer but white voters do not. 84 

2. Loosening Bailout Procedure. — Aside from the muddled conceptual 
issues that remain in the renewed VRA, scholars have also criticized how 
Congress handled problems of quantifiable evidence in the record supporting the 
Act. 85 On this more than any other single issue in the debate, scholars have 
registered grave doubts 86 about whether the empirical case could be made for a 
renewed Section 5 in light of City of Boerne} 1 This approach accepted the 
congressional finding that the best way to mark progress under the Act was to 
measure political improvements for minority groups. 88 



78. Id. at 1 89-92. In fact, the cognizant Senate committee quite infamously produced a pair 
of conflicting reports reading the Act in diametrically opposed ways. 

79. Id. at 190. 

80. Mat 231-32. 

81. Mat 240-42. 

82. Mat 219-26. 

83. Mat 220. 

84. Id. at 230. 

85. See 152 Cong. Rec. S8012 (daily ed. July 20, 2006); 152 Cong. Rec. H5131, H5207 
(daily ed. July 13,2006). 

86. See James Thomas Tucker, The Battle Over "Bilingual Ballots " Shifts to the Courts: A 
/W-Boerne Assessment of Section 203 of the Voting Rights Act, 45 HARV. J. ON LEGIS. 507, 513 
(2008); see also Richard H. Pildes, Is Voting Rights Law Now at War with Itself?: Safe Election 
Districts Versus Coalitional Districts in the 2000s, 89 N.C. L. REV. (forthcoming Dec. 2010), 
available at http://ssrn.com/abstract=304587. 

87. City of Boerne v. Flores, 521 U.S. 507, 517-19 (1997). 

88. See Tucker, supra note 86, at 578 (stating that "Section 203 has proven extraordinarily 
effective in addressing the effects of education discrimination on language minority voters. While 
a marked difference in participation rates remains between non-Hispanic whites and language 



2 1 6 INDIANA LAW REVIEW [Vol. 44:20 1 



However, the evidence on minority registration and participation rates, 
office-holding, and (to some degree) racial polarization indicated that significant 
progress had been made. These trends were especially clear in the jurisdictions 
where Section 5 had been enforced. 89 In some of these jurisdictions, minority 
participation rates even exceeded those of white voters. 90 At the same time, the 
DO J only rarely objected to proposed election changes, suggesting that states no 
longer engaged in the kind of wholesale discrimination that was commonplace 
in the 1960s. 91 How could the continuance of the preclearance system remain 
justifiable in the face of evidence showing its success? To be sure, some scholars 
introduced additional evidence that placed these findings in context, 92 but these 
studies were eclipsed by the alarms about the case for an extension. 

Despite problems with the legislative evidence, Rick Hasen cautiously agreed 
during legislative hearings that an extended version of Section 5 could be a 
constitutional enactment. 93 He concluded from an analysis of the evidentiary 
standard applied in post-Boerne cases that a reauthorization of Section 5 would 
likely be valid, but it would need to overcome clear evidence of declining racial 
discrimination in the political sphere. 94 The most significant piece of evidence 
in the record was the "Bull Connor Is Dead" problem. 95 Hasen observed that the 
starkly racist viewpoint is now highly disfavored in Southern political 
discourse. 96 The "segregation now and forever" regime (of which Connor was 
a key part) is now largely extinct, powerless, or disfavored due to shifting 



minorities, the gap has narrowed considerably."). 

89. See Nw. Austin Mun. Util. Dist. One v. Mukasey, 573 F. Supp. 2d 221 , 247-65 (D.D.C. 
2008). 

90. Id. at 247. Rome pointed out that by 1 976 black registration rates in four southern states 
exceeded the national average for blacks and argued that the "emergency with respect to which 
Congress acted in 1964 ha[d] passed." Id. at 247 (quoting Brief for Appellants at 173, City of 
Rome v. United States, 446 U.S. 156 (1980) (No. 1801840)). 

9 1 . Tucker, supra note 69, at 2 1 (stating that many "civil rights groups [perceived] the Bush 
Administration's Justice Department [as reluctant] to enforce Section 5" and that "reauthorization 
would be an uphill battle"). 

92. See generally Mark A. Posner, Time Is Still on Its Side: Why Congressional 
Reauthorization of Section 5 of the Voting Rights Act Represents a Congruent and Proportional 
Response to Our Nation 's History of Discrimination in Voting, 1 N. Y.U. J. LEGIS. & Pub. Pol'y 
5 1 (2006) (discussing why reauthorization of Section 5 was still necessary). 

93. See Rick Hasen, Drafting a Proactive Bailout Measure for VRA Reauthorization, 
Election Law Blog (May 1 8, 2006, 9:37 AM), http://electionlawblog.org/archives/005655.html. 

94. See Rick Hasen, Can "Proactive Bailout" Save VRA Renewal from Constitutional 
Attack?, Election Law Blog (May 16, 2006, 5:03 PM), http://electionlawblog.org/archives/ 
005638.html. 

95 . See An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues 
Relating to Reauthorization: Hearing on S.B. 2703 Before the S. Judiciary Comm., 109th Cong. 
8-10 (2006) (statement of Richard L. Hasen, Professor of Law, Loyola Law School) [hereinafter 
An Introduction to the Expiring Provisions of the Voting Rights Act]. 

96. Id. at 9. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 2 1 7 



cultural norms. And the aforementioned evidence reflecting this political shift 
is a testament to the success of VRA enforcement. Nevertheless, the suggested 
"proxies" for discrimination are not entirely equal to the task of justifying the 
Act. Hasen explained that declining DO J preclearance objections and evidence 
of private discrimination would either be inadequate or irrelevant in judicial 
inquiry into ongoing state-sponsored discrimination. 97 

To confront these problems, Hasen later suggested that Congress incorporate 
new elements into the VRA to demonstrate greater constitutional tailoring in the 
preclearance remedy. 98 One of his proposed fixes during the legislative hearings 
was to simplify the bailout process by providing an accessible exit strategy for 
more covered jurisdictions. 99 Under his formulation, called proactive bailout, 
DOJ officials would compile a list of jurisdictions that might be eligible for 
bailout and then notify local officials in those locations about this possibility. 100 
Reducing the impact of the federal oversight power would arguably help 
counteract doubts about the strength of the evidentiary record. While it received 
the endorsement of some Southern members of Congress, Hasen 's idea was 
summarily dismissed by advocates as an effort to weaken the provision and as a 
tool that would introduce too much uncertainty into its application. 101 

3. Broadening the Concept of Rights. — A final area of criticism poses 
perhaps the most provocative claim — that congressional adoption of the VRA 
ignored the possibility of a more ambitious election reform agenda. This position 
accepts the earlier points concerning the deficiencies in the record evidence. 
Demonstrating a sustained need for the preclearance regime may be difficult in 
light of changing racial norms, but the broader indicators of a systemic meltdown 
in election management are ever-present. The critique suggests that the 
challenges relating to racial equality in the political sphere are only symptomatic 
of a broader set of structural problems in the political system. The obsession 
with replaying past debates about racial politics has obscured the more 
fundamental issue of reforming election structures. According to this view, the 
only way to make real progress in entrenching the right to vote for all citizens is 
to scrap the VRA discussion altogether. 

Going a step beyond Hasen' s recommendations, Richard Pildes has proposed 
that the entire anti-discrimination framework ought to be replaced with a 
conversation about systemic reforms. 102 He finds that recent cases involving 
racial discrimination in the political sphere more often involve partisan politics 



97. Id. 

98. Id. at 10. 

99. See Hasen, supra note 94. 

1 00. Hasen, supra note 93 . 

101. See, e.g., Bob Bauer, The Uses of Hearings and the Strength of the "Deal" in the 
Renewal of the VRA, MORE SOFT MONEY HARD Law (May 16, 2006), http://www. 
moresoftmoneyhardlaw.com/news.html?AID=7 12. 

1 02. See Richard H. Pildes, The Future of Voting Rights Policy: From Anti-Discrimination 
to the Right to Vote, 49 How. L.J. 741, 755-62 (2006). 



218 INDIANA LAW REVIEW [Vol. 44:201 



than concerns about the political power of excluded racial groups. 103 The "racial 
gerrymandering" cases, for example, are often dominated by a discussion of 
whether a plan has implications for the Democratic or the Republican Party. 104 
The same is true for more recent controversies involving voter ID requirements, 
which are often cast as racial discrimination problems. 105 Because the Court has 
declined to regulate partisan competition, a coherent model for combating racial 
discrimination has become illusory; the entire project has been hijacked by 
political parties. 106 Thus, Section 5 has failed to evolve to address more systemic 
problems. Because of the politics around its application, Section 5 had very little 
influence in addressing the vote counting controversies in Ohio and Florida. 107 
These problems represent the future of controversies involving the right to vote, 
yet the major tool of enforcement seems inadequate to accomplish the task. 

In this light, the entire effort to show that the VRA remains a viable 
enforcement remedy misses the point. Pildes suggests that rather than focusing 
strictly on anti-discrimination, a more comprehensive strategy is to adopt 
legislation that formally entrenches the right to vote. 108 A positive affirmation 
of a standard that governs the right to vote would respond more effectively to the 
racial discrimination problems and would provide broader protections against 
partisan manipulation in the political system. 109 His proposed structure would 
permit a much narrower version of Section 5, but that provision would only 
address a very small number of jurisdictions. The system would adopt a formula 
with transparent and current information to identify the most recalcitrant 
jurisdictions. 110 However, its reach would only supplement the more 
fundamental set of protections that follow from the positive grant of the 
franchise. 

Pildes' s idea acknowledges the political impasse that has defined the nature 
of debate around the preclearance system. New approaches to improve the 
protection of the franchise and respond to problems often face great skepticism 
in this highly divisive environment. 111 Recognizing the practical difficulties in 
promoting this ambitious idea as an actual policy measure, Pildes suggests that 
sponsors of Section 5 might leverage his proposed changes in exchange for the 
establishment of his model provision. 112 As it exists in other constitutional 
democracies, a uniform national voting-rights protection would effectively 
respond to both the remaining challenges involving racial exclusion as well as the 



103. Mat 751. 

104. Mat 763-64. 

105. Mat 751, 758-62. 

106. Mat 761-64. 

107. Mat 748-49. 

108. Id. at 756. 

109. Mat 761. 

110. Mat 761-62. 

111. Id. at 756 (stating that "the concept of preclearance review . . . [is] fundamentally tied to 
suspicion of changes to voting practices"). 

112. Mat 756-57. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 2 1 9 

more generalized problems related to systemic failures to regulate the ballot box. 

B. Enter the Roberts Court 

With opposition to Section 5 and several critics suggesting what the statute 
ought to have addressed, few were shocked when a local jurisdiction in Texas 
filed a lawsuit challenging the application of the preclearance system in 
Northwest Austin Municipal Utility District Number One (NAMUDNO) v. 
Holder. U3 While the main alleged legal injury was that this jurisdiction had been 
denied bailout of the preclearance system in the lower court, 114 most of the 
briefing in the case by the parties and amici concerned the matter that had been 
the million dollar question since Boerne and a key concern during the legislative 
reenactments — whether the preclearance provisions after 2006 remained a 
constitutional exercise of Congress's enforcement power. 115 The district 
contended that if bailout was not permissible under the law, then Section 5 as a 
whole was unconstitutional under the Boerne line of cases. 116 

With a thoroughly researched legislative record and a flurry of supporting 
briefs in the case, one might have expected that a definitive statement from the 
Court was unavoidable. However, the Court declined to decide the law's 
constitutionality in its holding. Instead, the majority (re)interpreted its earlier 
decision in City of Rome, holding that local jurisdictions like NAMUDNO within 
covered states could independently seek preclearance bailout. 117 

This is not to say that Chief Justice Roberts remained entirely silent about his 
views of the provision itself. The most charitable way to describe his 
characterization of the preclearance provision is cautiously ambivalent. His 
review of the achievements of the VRA resembled many offered by opponents 
during the reenactment proceedings. 118 Compared to the landscape that existed 
both times it addressed the constitutionality of Section 5, Chief Justice Roberts 
claimed, "Things have changed in the South. Voter turnout and registration rates 
now approach parity. Blatantly discriminatory evasions of federal decrees are 
rare. And minority candidates hold office at unprecedented levels." 119 In light 
of these accomplishments, Chief Justice Roberts registered doubt about the 
legitimacy of the provision because its "current burdens . . . must be justified by 
current needs." 120 



113. 129 S. Ct. 2504 (2009). 

114. Mat 2509-10. 

115. See Brief for Appellant at 7, Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 1 29 S. Ct. 
2504 (2009) (No. 08-322); see also Brief of Scharf-Norton Center for Constitutional Litigation as 
Amici Curiae Supporting Appellant at 6, Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. 
Ct. 2504 (2009) (No. 08-322). 

116. See NAMUDNO, 129 S. Ct. at 2510. 

117. Id. at 2516-17. 

118. See id. 

119. Mat 2511. 

120. Mat 251 1-12. 



220 INDIANA LAW REVIEW [Vol. 44:201 



The remainder of the opinion's discussion of constitutionality concerns raises 
questions that should give sponsors of the provision great pause. 
Notwithstanding its success, Chief Justice Roberts wrote, the provision infringes 
on "sensitive areas of state and local policymaking [and] imposes substantial 
'federalism costs.'" 121 Chief Justice Roberts then recited almost every one of the 
concerns mentioned by Section 5 opponents in the reenactments, ranging from 
the statute's potential violation of the equal sovereignty doctrine, to its use of 
thirty-five-year-old data, to its selective targeting of states for coverage. 122 As to 
the last matter, Chief Justice Roberts seemed entirely unconvinced of the logic 
in any law enforcing a standard that would find the same policy illegal in a 
covered state while permissible in another. 123 

There are, of course, many ways to read the opinion. The most sanguine 
observers view the language gesturing toward a rather unfavorable constitutional 
analysis as nothing more than dicta. 124 Some advocates declared that the 8-1 
decision effectively endorsed Section 5 since it ultimately sidestepped a serious 
constitutional challenge. 125 Further, as a practical matter, the decision foreclosed 
any follow-up claim to the one mooted by this decision. 126 Because smaller 
jurisdictions like NAMUDNO now may seek bailout, the likelihood of a serious 
constitutional challenge from a state government is minimal. 

Yet one can just as easily read NAMUDNO as a how-to manual for a 
particularly intrepid state government that is willing to pick up where 
NAMUDNO left off. Indeed, two jurisdictions have recently commenced 
proceedings to challenge the constitutionality of Section 5 on the merits. 
Nothing in that passage (dicta or not) indicates that the Court will reject a future 
invitation to address a direct challenge from an intrepid state government. A 
constitutional challenge could renew the assertions that the level of progress in 
the political system is substantial enough to warrant greater scrutiny in the 
Court's review of the statute. To the extent that the current reenactment of 
preclearance cannot provide a direct response to the questions that Chief Justice 
Roberts poses, the future of preclearance remains in some doubt. Accordingly, 
Congress may have good reason to revisit this issue in the short term. 

III. Reinvention as an Answer 

As Part II shows, the chances that Congress will need to address the VRA 
extensions of 2006 are quite considerable. Scholars have pointed out that several 
issues remain unsettled with the existing statute. At the same time, the Supreme 



121. Id. at 25 1 1 (internal citations omitted). 

122. Id. at 2512. 

123. Mat 2515-16. 

124. See Rick Hasen, Initial Thoughts on NAMUDNO: Chief Justice Roberts Blinked, 
Election LAW Blog (June 22, 2009, 8:00 AM), http://electionlawblog.org/archives/013903.html. 

125. See Erin Miller, NAMUDNO: Right Question, Wrong Case, SCOTUSBLOG (Feb. 8, 
2010, 10:53 AM), http://www.scotusblog.com/2010/02/namudno-right-question-wrong-case/. 

126. Id. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 22 1 



Court may soon hear one of the many renewed constitutional challenges of 
Section 5 presently in the lower courts, which may ultimately lead to a decision 
to strike down the statute. Thus, Congress may well need to reconsider the 
existing provision to shore up the legislative scheme. This part provides some 
background on a concept that should prove helpful in this renewed conversation: 
the reinvention of government. 

Reinventing government was a major policy initiative to streamline 
governmental operations and service delivery during the 1990s. In the face of 
widespread indicators of public cynicism about the efficacy of government 
services, President Clinton launched a multi-stage strategy to review and redesign 
the way that these agencies function. 127 Many policy and administrative scholars 
credit this reform of government services as among the most successful programs 
ever launched at the federal level. 128 After reviewing the historical development 
of this initiative along with its results, this Part identifies the most significant 
factors that accounted for its effectiveness. The process of reinventing 
government provides an especially helpful model for adopting a new framework 
for the preclearance process in the VRA. 

A. The Foundations of Reinvention 

The origin of "reinvention" as a concept is traceable to three related sources. 
The most dominant accounts find that the idea emerged in the private sector, 
where large corporations saw the potential for changing internal workplace 
culture to resolve systemic problems in their traditional hierarchical governance 
structures. 129 Borrowing heavily from academic studies in organizational 
behavior, proponents of reinvention in these companies presented their ideas as 
a route to enhance output efficiency and improve workplace morale. 130 In 
management settings, reinvention principles included specific reforms such as 
decentralizing authority, flattening governing structures, and increasing employee 
control over the workplace decisionmaking. 131 All of these changes were 
accomplished with the goal of increasing consumer satisfaction with a company's 



1 27. See John Kamensky, A Brief History of Vice President Al Gore 's National Partnership 
for Reinventing Government During the Administration of President Bill Clinton 1 99 3 '-2 00 7, N AT' 'L 
P'ship for Reinventing Gov't (Jan. 12, 2001), http://govinfo.library.unt.edu/npr/whoweare/ 
historyofhpr.html. 

128. These scholars include Ted Gaebler, David Osborne, Jonathan D. Breul, and John M. 
Kamensky. 

129. John M. Kamensky, Role of the "Reinventing Government" Movement in Federal 
Management Reform, 56 PUB. ADMIN. REV. 247, 248-49 (1996). 

130. See generally David Osborne & Ted Gaebler, Reinventing Government: How the 
Entrepreneurial Spirit Is Transforming the Public Sector (1993). This book sparked the 
movement and coined the phrase "reinventing government" that would later become the basis for 
the National Partnership for Reinventing Government. 

131. See id. at 20-24. 



222 INDIANA LAW REVIEW [Vol. 44:201 



products and services. 132 

The fundamental ideas giving rise to reinvention also can be found in the 
traditional work in public choice theory. Writers such as Mancur Olson, 133 
Gordon Tullock, 134 and William Niskanen 135 developed models of governance 
that emphasized the role of local government officials in maintaining a 
democratic society. 136 Aside from the functions of more formal institutions such 
as legislatures and courts, a bureaucracy's relationship with private citizens 
affects the level of public acceptance of and adherence to governmental 
authority. 137 A record of bureaucratic competence and effectiveness creates 
confidence in the state's ability to address collective problems; it also enhances 
the credibility of the state's commitments and threats. Without reliable 
performance and responsiveness from administrative agencies, the individual 
citizen has little reason to comply with the demands of the state. 138 Accordingly, 
this literature teaches that the proper functioning of bureaucracies can contribute 
to the longevity of any political regime. 

The roots of reinvention also have a home in public administration literature, 
which commonly takes a cause-and-effect approach to examine efforts to reshape 
government structures. Much work in this area is concerned with more 
measurable outcomes such as public welfare and distributional equality, as 
opposed to more abstract concepts relevant to political theories of governance. 139 
Unlike public choice models for bureaucratic service, public administration 
scholars commonly trace the historical development of the state's bureaucratic 
structure. 140 They often examine the results of reorganization strategies to 
determine how effectively a given approach succeeds in aligning the various 
political interests necessary to achieve a structural change. 141 A common focus 



132. See id. at 16-20. 

133. See Mancur Olson, The Logic of Collective Action: Public Goods and the 
Theory of Groups ( 1 97 1 ). 

1 34. See James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical 
Foundations of Constitutional Democracy ( 1 962). 

135. See William A. Niskanen, Jr., Bureaucracy and Representative Government 
(1971). 

136. Id. 

137. See generally Richard S. Whitt, Adaptive Policymaking: Evolving and Applying 
Emergent Solutions for U.S. Communications Policy, 61 FED. COMM. L.J. 483 (2009). 

138. See id. at 496-504. 

1 39. See Margo L. Bailey, Cultural Competence and the Practice of Public Administration, 
in Diversity and Public Administration: Theory, Issues, and Perspectives 177, 180-85 
(Mitchell F. Rice ed., 2005); see also Herbert Kaufman, Emerging Conflicts in the Doctrines of 
Public Administration, 50 AM. POL. SCI. REV. 1057, 1060-62 (1956). 

140. See, e.g., David G. Frederickson & H. George Frederickson, Measuring the 
Performance of the Hollow State 1 (2006) (noting that "in the classic public administration 
ethos, well-managed governments will perform well"). 

141. See Sidney A. Shapiro & Rena Steinzor, Capture, Accountability, and Regulatory 
Metrics, 86 Tex. L. Rev. 1741, 1759 (2008) ("For public administration, the tool of choice to 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 223 



of study is how the U.S. President and his cabinet can enact organizational 
changes in the executive branch that can further his policy goals. Significant 
changes are rarely possible through executive orders alone because of the 
multiple centers of power in agencies; persuasion and consensus are essential to 
developing a new governing structure. 142 This work is often quite dependent 
upon context, although many writers attempt to draw parallels across historical 
periods and government agencies. 

B. The Reinventing Government Experience 

In the 1990s, the National Performance Review (NPR) was the Clinton 
administration's comprehensive effort to improve the function of government 
agencies. 143 Reacting to the historical association of Democrats with the runaway 
growth of an ineffective bureaucratic state, President Clinton campaigned on a 
commitment to "mov[e] from red tape to results to create a government that 
works better and costs less." 144 This approach, adapted from a scholarly study 
of agency development called Reinventing Government, was a prominent theme 
in Clinton's blueprint for a domestic program. Government reform was an 
influential element in substantive policies that formed the "New Democrat" 
agenda. 145 Citing the lack of public confidence in government efficacy, the 
administration called for "a new customer service contract" 146 in citizen- 
government relations, and it sought "to change the culture of our national 
bureaucracy away from complacency and entitlement toward initiative and 
empowerment." 147 

Earlier presidential efforts at reforming administrative agencies typically 
relied upon external commissions to conduct reviews and provide 
recommendations. The problem with the so-called "blue ribbon panel" 
strategies, though, was that partisan wrangling over panel appointments 
sometimes consumed large quantities of time and resources; in some cases, 
naming a panel blunted momentum for reform. Additionally, the selected 
members tended to avoid more critical examinations for fear of potentially 



promote good management is rigorous measurement of agency and program performance."). 

142. See Harold H. Bruff, Presidential Power Meets Bureaucratic Expertise, 12 U. PA. J. 
Const. L. 461, 477 (2010) ("By increasing the numbers of political appointees in the executive 
branch, Presidents have also increased their own managerial responsibilities as they try to 
implement coherent policies."). 

143. SeekL Gore, Common Sense Government: Works Better & Costs Less 1 (1995). 

144. Al Gore, From Red Tape to Results: Creating a Government That Works 
Better and Costs Less, at i (1993). 

145. OSBORNE & GAEBLER, supra note 1 30; see generally KENNETH S. BAER, REINVENTING 
Democrats: The Politics of Liberalism from Reagan to Clinton (2010). 

146. Gore, supra note 144, at i. 

147. President Bill Clinton, Remarks Announcing the Initiative to Streamline Government 
(Mar. 3, 1993), available at http://govinfo.library.unt.edu/npr/library/speeches/030393.html. 



224 INDIANA LAW REVIEW [Vol. 44:201 



divisive and volatile choices about downsizing or eliminating an agency. 148 
Accordingly, the final reports from these panels rarely offered any serious plan 
of action for restructuring government; once announced, these commission 
recommendations often sat untouched. In fact, the review panel authorized by 
Congress in 1992 (months before Clinton was elected) never was staffed by his 
predecessor due to internal bickering about basic staffing decisions. 

The Clinton approach was decidedly different. Shortly after entering office, 
Clinton tasked Vice President Gore to lead a six-month review of government 
administration, which culminated in a report that included specific policy 
recommendations. 149 Gore amassed an NPR team of 250 civil servants 
representing multiple sectors within the government workforce to gather 
information from various government agencies. 150 This review team consisted 
of top officials in Washington, D.C., local bureaucratic employees, and state 
officials who had run similar reinvention efforts for their own civil service 
systems. 151 Importantly, the group's review strategy utilized its diversity to 
obtain several perspectives on governmental performance. The NPR spoke 
directly and extensively with federal employees and gathered input from over 
30,000 citizens about their experiences with government administration. 152 

The NPR recommended that agencies form separate "reinvention teams" to 
direct the implementation of the new agency policies developed in the system- 
wide review stage. 153 Additionally, the NPR encouraged the creation of 
"reinvention laboratories" within agencies — more informal groups that could 
think creatively and pioneer innovative solutions to administrative 
problems — and researched successful pilot programs already underway. 154 Vice 
President Gore personally conducted a series of town hall meetings, and a public 
summit took place to engage business, government, and academic elites in the 
discussion on reform. 155 

While the NPR was in the midst of compiling its report in 1993, Congress 
passed the Government Performance and Results Act, which was intended to 
facilitate a results-oriented approach to the administration of government. 156 
Permitting "flexibility in return for accountability," the Act allowed agencies to 
request waivers of compliance with certain regulatory requirements if they met 



148. See, e.g., William E. Kovacic, Using Ex Post Evaluations to Improve the Performance 
of Competition Policy Authorities, 31 J. CORP. L. 503, 517-20 (2006). 

149. Jonathan D. Breul & John M. Kamensky, Federal Government Reform: Lessons from 
Clinton's "Reinventing Government" and Bush's "Management Agenda" Initiatives, 68 Pub. 
Admin. Rev. 1009, 1011 (2008). 

150. Id. 

151. Id. 

152. See GORE, supra note 1 44, at 1 4- 1 5 . 

153. John Kamensky, Nat'l P'ship for Reinventing Gov't, Who We Are, A Brief 
History (Jan. 1999), available at http://govinfo.library.unt.edu/npr/whoweare/history2.html. 

154. Id. 

155. Id. 

156. Government Performance and Results Act of 1993, Pub. L. No. 103-62, 107 Stat. 285. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 225 



certain other requirements. 157 The 103rd Congress passed thirty bills 
implementing NPR recommendations. 158 

In 1994, the NPR assisted numerous federal agencies in creating standards 
for customer service; 159 hundreds of obsolete programs were eliminated; 160 
Congress successfully passed legislation reforming the procurement system; 161 
and the NPR alleged that levels of satisfaction among citizens and federal 
employees had doubled. 162 By 1995, over 100,000 employees had been removed 
from the federal workforce 163 (that number was predicted to exceed 200,000 by 
1996, leading to the smallest federal workforce in 40 years 164 ). The NPR also 
claimed billions of dollars of reduction in debt, 165 although the U.S. Government 
Accountability Office disputed a direct correlation with adopted NPR 
recommendations. 166 

In September 1995, the NPR generated a second major report, Common 
Sense Government, with a new list of 250 recommendations. 167 And at the 
beginning of President Clinton's second term, the NPR effort underwent a 
change in focus. 168 The effort was renamed the "National Partnership for 



157. Gore, supra note 144, at 34. 

158. 141 Cong. Rec. H1960 (daily ed. Feb. 21, 1995) (statement of Rep. Thurman). 

159. See KAMENSKY, supra note 1 5 3 . 

160. 141 Cong. Rec. H1959 (daily ed. Feb. 21, 1995) (statement of Rep. DeLauro); Breul & 
Kamensky, supra note 149, at 1014. 

161. 141 Cong. Rec. H1957 (daily ed. Feb. 21, 1995) (statement of Rep. Maloney). 

162. Breul & Kamensky, supra note 149, at 1014. 

163. Cong. Rec H1957 (daily ed. Feb. 21, 1995) (statement of Rep. Maloney). Most of the 
phasing out occurred through a legislated buyout plan (the Federal Workforce Restructuring Act 
of 1994). See Statement on the National Performance Review, 140 Cong. REC. SI 293 7 (daily ed. 
Sept. 14, 1994) (statement of Sen. Glenn, Chairman of the Sen. Gov't Affairs Comm.) (referring 
to the federal employee buyout bill); Gore, supra note 144, at 14 (expressing the intention to 
implement the downsize of the workforce through a buyout). Indeed, the issue of eliminating 
federal jobs had raised some attention in the media. See, e.g., Gwen Ifill, Plan to Tighten 
Government Could Affect 1 00,000 Jofo, N.Y. TIMES, Sept. 1, 1993, atA16; Gwen Hill, Washington 
Memo; In Trying to Streamline Government, Gore Fights a Battle Many Have Lost, N. Y. TIMES, 
Sept. 5, 1993, at 38 (noting that proponents of the downsize avoided using the word "layoff). 

164. 141 Cong. Rec. H1957 (daily ed. Feb. 21, 1995) (statement of Rep. Maloney); id at 
HI 959 (statement of Rep. DeLauro); George Nesterczuk, Reviewing the National Performance 
Review, 1996 REGULATION 31, 35-36 (1996). 

165. 141 CONG. Rec. H1958 (daily ed. Feb. 21, 1995) (statement of Rep. DeLauro); Breul & 
Kamensky, supra note 149, at 1014. 

1 66. U.S. Accountability Office, GAO/BGO-99-120, NPR's Savings: Claimed Agency 
Savings Cannot All Be Attributed to NPR ( 1 999), available at http://www.gao.gov/archives/ 
1999/gg/99 120.pdf; Breul & Kamensky, supra note 149, at 1014; Nesterczuk, supra note 164, at 
35. 

167. See GORE, supra note 1 43 . 

168. Following a difficult period in 1995 when the government was trying to balance the 
budget, some said that the NPR movement had ebbed slightly. See, e.g., Stephen Barr, Gore's 



226 INDIANA LAW REVIEW [Vol. 44:201 



Reinventing Government," and proponents began targeting thirty-two "high 
impact" agencies, chosen because of their level of interaction with the public. 169 
The NPR focused on assisting in the complete "culture change" at those entities 
by allowing reinvention policy to permeate every aspect of their day-to-day 
administration. 170 The NPR compiled practical "reinvention rules" in the Blair 
House Papers and pursued initiatives such as "Access America," a project 
designed to facilitate electronic government. 171 

The NPR also facilitated communities of practice, working with state and 
local governments to address different but related policy issues in logical, 
effective combination. In this way, the NPR "became a convening authority and 
a neutral meeting place of cross-agency efforts" 172 and "piloted the development 
of performance-based organizations" 173 (PBOs). The innovation successfully 
transformed three of the substantive policy areas at the core of the President's 
agenda: "child health insurance, safe cities, and the twenty-first century 
workforce." 174 

C. Key Elements of Reinvention 

While scholars have discussed a variety of reasons for the overall success of 
the Clinton-Gore reinventing government strategy, the point of the present 
examination is to identify aspects of the reinvention program that can be applied 
to the voting rights preclearance system. In this connection, three specific 
elements of the reinventing government initiative are worthy of consideration: 
setting goals, enhancing efficiencies, and encouraging innovation. 

1. Clarifying Goals. — One of the core governing principles expressed by the 
NPR was "back to basics," a concept that meant returning to the core goals of 
each agency's work. A common complaint during the NPR's systemic review 
was that agency officials showed little interest in pursuing any goals associated 
with their perceived functions. 175 Instead of providing quality service to a 



Team Turns to Making Reinvention Deliver; At 5 -Year Point, 32 Agencies ' Goals Are Readjusted, 
Wash. Post, Mar. 3, 1998, at A15 (noting that commentators said the effort had "defused," lost 
momentum, and was on "automatic pilot"). 

169. Breul & Kamensky, supra note 149, at 1013-14; Kamensky, supra note 153. 

1 70. see john m. kamensky, nat'l p'ship for reinventing gov't, reinvention in the 
Second Clinton-Gore Administration: Changing the Culture of Government 
AGENCIES — 1 997-200 1 (last visited Nov. 1 4, 20 1 0), available at http://govinfo.library.unt.edu/npr/ 
who weare/hi storypart4 .html . 

171. See generally Bill Clinton & Al Gore, Nat'l Performance Rev., Blair House 
PAPERS ( 1 997), available at govinfo.library.unt.edu/npr/library/papers/bkgrd/blair.html (Jan. 1 997); 
see also ACCESS America, http://govinfo.library.unt.edu/accessamerica/ (last visited Nov. 14, 
2010). 

172. Breul & Kamensky, supra note 149, at 1014. 

173. Id 

1 74. Id. ; see also KAMENSKY, supra note 1 53. 

175. See Breul & Kamensky, supra note 149, at 1013-14. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 227 



constituency or enhancing some substantive goal identified in legislation, the 
public reported that agency officials neglected or ignored the needs of 
constituents. 176 Their attention seemed less directed to responding to requests for 
assistance than to extending the life of the agency. In other cases, agencies had 
failed to fulfill any mandate due to an absence of clear goals; others failed 
because different levels in the agency pursued multiple or even conflicting policy 
goals. 177 

In response to this combination of bureaucratic lethargy and confusion, the 
reinvention program mandated that all agencies identify clear, attainable 
objectives to guide their operation. 178 Unlike a typical command-and-control 
directive, however, the NPR established working groups that included agency 
employees, federal managers, and consumers to articulate these operational 
goals. These working groups gathered information from a variety of sources, 
including public surveys, agency manager interviews, and records from the 
relevant congressional oversight committee. 179 

Furthermore, these initial working groups were tasked to identify objective 
goals within each agency that could be assessed by the public. The goals were 
tailored to the particular needs and capacity of a given agency because the groups 
were differentiated by substantive area. 180 Additionally, the goals reflected a 
common understanding because each group also reflected a variety of major 
interests that were relevant to the agency's work. With these articulated 
objectives in place, NPR officials predicted that reinvented agencies could 
employ internal reforms organized around a uniform purpose. 181 

2. Assessing & Enhancing Efficiencies. — A core feature of the NPR 
reinvention campaign was "cutting red tape" inside the various federal 
agencies. 182 With a guiding purpose for its work clearly established, an agency 
could then begin a close review of its internal operations to assess how well 
employees accomplished its aims. Reinvention teams recognized that this effort 
required reducing or eliminating regulations that interfered with agency 
performance. The NPR team also pursued financial savings by removing 
redundant or inefficient sectors of the federal workforce. 

Both of these tactical steps were politically important. Each helped to 
dismantle the very stark image of bloated, inefficient agencies, a powerful 
symbol that fed into the public's strongly negative perceptions of government 
performance and responsiveness. A common frustration reported in the NPR's 
early public satisfaction surveys was that internal rules were so indecipherable 



176. Id. 

177. Id. 

178. Id. at 101 7 ("Agencies were expected to develop plans, identify the responsible officials, 
and apply resources to achieve these improvement goals within their own organization."). 

179. Mat 1011. 

180. See id. 

181. See id. 

182. Id. at 1013; see also GORE, supra note 144, at 2-3. 



228 INDIANA LAW REVIEW [Vol. 44:201 



that they deterred citizens from seeking services. 183 Simplifying the maze of 
forms, procedures, and requirements improved accessibility for 
citizens — particularly persons with limited education and financial means who 
depended on the reliable and efficient delivery of agency service. 

How was this part of the reinvention regime implemented? The NPR 
summarized its practical aims as challenging agencies so that they worked better 
and cost less. 184 By focusing on aspects that would accomplish their agreed-upon 
ends more efficiently, the agencies would become more results-oriented under 
this approach. Removing procedural barriers started with identifying essential 
components of each agency's operation. 185 These assessments involved interests 
at every stage of policymaking from formation to delivery at the point-of-contact 
with consumers. This effort made it possible to eliminate unnecessary or 
unhelpful steps while promoting those functions that promoted the agency's 
effectiveness. 

For the thirty federal agencies and bureaus whose functions directly engaged 
segments of the public, including the National Park Service and the Internal 
Revenue Service, the program prompted the implementation of discrete but 
visible policy changes that helped improve public accessibility. In the IRS, for 
instance, this meant expanding telephone service so that customers could contact 
officials twenty- four/seven during tax season. 186 Similarly, the National Park 
Service directed employee guides to include explanations in their formal tours 
showing why a particular location merited funding from the taxpayer. 187 Each of 
these changes provided a strong signal to the user that agencies were adopting a 
more open and responsive culture. 

Aside from promoting these policies, the NPR established agreed-upon 
metrics for tracking improvements in agency functions. Using the findings from 
the multi-level working groups, the NPR operationalized the concept of 
"workfing] better" by identifying objective markers of efficiency that were 
specific to each agency's function. 188 Accounting for these measurements in the 
reinvention program provided agency operatives with an incentive to succeed in 
promoting the goals of the agency. Further, the agency's managers could easily 
mark the progress of its units and test various programmatic ideas. Perhaps most 
importantly, these measures were transparent. Accordingly, they recruited public 
involvement in maintaining the quality of agencies. A typical metric of success 



183. See Breul & Kamensky, supra note 149, at 1014. 

184. See id. 

1 85. Id. NPR's efforts to reduce costs "led to a reduction in the size of the federal workforce 
of 426,200, the passage of 90 pieces of legislation, the elimination of 250 obsolete programs, the 
reduction of 640,000 pages of unnecessary internal regulations, and the elimination of another 
16,000 pages of regulations affecting the public and businesses." Id. 

186. See id. 

187. See id. 

188. Id. (using objective markers such as customer and employee surveys to gauge the 
perceived success of the NPR's efforts). 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 229 



was public satisfaction with the delivery of services. 189 While it was not the only 
basis for assessment, noting public sentiment helped assure that bureaucracy 
remained alert to address the needs and concerns of the end-users of public 
services. 

3. Encouraging Innovation. — The third notable aspect of reinvention was 
encouraging innovation at the agency level. If identifying efficiency was the core 
of reinvention, innovation was the most enduring way of entrenching the effects 
of a reform strategy. Reinvention's departure from more traditional 
reorganization efforts was declining the formal announcement of major policy 
changes from the cabinet secretary's office in Washington, D.C. Instead, the 
NPR redefined the agency's internal culture starting with the day-to-day 
functionaries within the agencies. 190 The theory behind this approach was that 
changes in culture depended upon mid- to low-level civil servants embracing 
different norms. Only with their willingness to pursue innovation could the 
agency avoid the low ratings in public surveys that gauged their flexibility in 
responding to new types of problems. 

In at least two specific ways, the bottom-up approach to reinvention 
improved the agency's ability to innovate. First, the internal innovation 
laboratories established a greater sense of ownership and control at the point-of- 
contact with the public because these entities involved employees at every 
agency level. Under the traditional system, local agency officials had little 
opportunity to contribute to the framing of important management policies. 191 
Frontline workers stationed outside of Washington, D.C. were generally the 
objects rather than subjects of significant reform efforts. With a clear stake in 
the success of the new management strategy, civil servants had greater incentive 
to exercise their discretionary authority to address unanticipated problems of 
those seeking assistance. 192 The reoriented approach engendered a greater sense 
of ownership and regard for the new culture. 

Additionally, the reinvention program was also mindful to permit the agency 
to evolve over time. Long after the initial reinvention campaign had run its 
course, the NPR members desired to leave a structure that could continue to 
foster new management ideas. 193 This formula for ongoing innovation relied on 
maintaining channels of communication to all parts of the agency. It also 
required the ability of local agency officials to experiment with policy ideas that 



189. Id. 

190. Id at 1011 (noting that breaking from tradition included recruiting career government 
employees and forming a team of 250 staff "with each major agency creating its own internal 
teams"). 

191. See id at 1013. 

192. Id. ("The NPR launched a broad effort to encourage frontline staff to incorporate the 
principles of reinvention into their day-to-day work: putting customers first, cutting red tape, 
empowering employees, and cutting back to basics. This became a broader movement in the federal 
workforce to reshape the governmental bureaucratic culture to be more entrepreneurial and less rule 
driven."). 

193. See id 



230 INDIANA LAW REVIEW [Vol. 44:201 



were tailored to their specific experiences. Not only did these laboratories create 
an incentive to accept the standards-based culture in governmental agencies; the 
people most likely to interact with the public possessed authority to find new 
ways to be responsive. In other words, local officials were empowered to seek 
innovative solutions (within limits) in their agencies and then pass along their 
experiences to agency leaders in Washington, D.C. 

The reinvention campaign included other incentives for agency employees 
to participate in the innovation agenda. The most publicized of them was the 
Hammer Award, a prize given to federal employees throughout the government 
who had succeeded in introducing new, effective ways of controlling costs and 
improving the quality of agency service. 194 By making these awards available, 
the framers established a multi-agency network for passing along ideas to 
advance agency management. The reinvention movement allowed even lower- 
level employees to transplant their ideas across substantive areas. These efforts 
were not always popular among senior management in the executive branch, 195 
but they established a norm of continually improving public works in response 
to new conditions. 

IV. Applying Reinvention to the Preclearance System 

This final Part applies the concept of reinvention to the VRA's preclearance 
system. Building on observations from Part III, I discuss the preconditions 
necessary for reinvention of the preclearance system to work in practice. As 
noted earlier, the present submission and review process suffers from three 
specific pathologies: (1) a lack of clear goals; (2) indeterminate metrics for 
charting the jurisdiction's progress; and (3) a stalemate on innovative changes in 
electoral structures. The politics at play in each of the legislative reenactments 
of the statute contributed to this outcome. The discussion in Congress avoided 
any resolution of these difficult issues in order to avoid a political impasse. 196 

I submit that a different approach — reinvention — would respond to these 
systemic problems. Also included in this section are some concrete ideas about 
what state and local governments might do to in furtherance of reinvention. This 
new framework provides clear goals for covered jurisdictions to accomplish, 
identifies ways to track and enhance efficiencies in the process, and creates 
opportunities for the stakeholders in covered jurisdictions to develop innovative 
methods of achieving their goals. 

A. The Goal of Reinvented Preclearance System 

The most controversial task for a reinvention effort in this context is 
establishing a clear purpose for the preclearance system. What exactly is to be 



194. Mat 1021. 

195. See id. at 1020. NPR efforts were met with skepticism from the Executive Branch, who 
doubted the NPR's ability to follow through with its initiatives. Id. 

1 96. See, e.g. ,152 CONG. REC. S8024 (daily ed. July 20, 2006); 1 52 CONG. Rec. H5 1 3 1 -207 
(daily ed. July 13, 2006). 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 23 1 



accomplished with an additional twenty-five years of preclearance oversight? 
The text of Section 5 indicates that its function is to deny practices with a 
purpose or effect of denying or abridging the effective exercise of the 
franchise. 197 But this tells us very little about the strategic goal for the provision 
in the places where it applies. The question about purpose is a deceptively 
simple one, especially since the original framers of the original provision were 
vague about any goal. Further, each reenactment reveals a lack of consensus 
about how to resolve this issue. 

The absence of a shared understanding is evident from the competing 
characterizations of Section 5's purpose. For its part, the U.S. Supreme Court 
has shifted its view of what the provision is designed to do. Shortly after 1965, 
the Court had endorsed a very robust application of the provision in Allen v. State 
Board of Elections. 198 Since then, the Court has supplanted that view with a 
more limited understanding — that Section 5 simply serves as a deterrent for 
"backsliding" by covered jurisdictions. 199 This "retrogression only" view of the 
provision would address only a small share of discriminatory practices, leaving 
the bulk of enforcement tasks to other parts of the statute. 200 The Justices have 
consistently rejected interpretations that preclearance should provide significant, 
independent protections beyond the remedies found in Section 2 of the statute. 201 
This approach suggests a very modest end for Section 5, since only the most 
overt state conduct would be considered retrogressive. 

But the Court is not alone in its confusion about the goal of the preclearance 
remedy. The reenactment debates in Congress included several asserted purposes 
of Section 5. 202 Those who opposed legislative extension of Section 5 viewed 
this provision as a temporary means of blocking the specific types of racial 
exclusion from the political system. 203 By eliminating the most significant 



197. 42U.S.C. § 1973(2006). 

198. 393 U.S. 544, 565-66 (1969). In rejecting a narrow conception of the provision, the 
Court stated: 

The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations 
which have the effect of denying citizens their right to vote because of their race. 
Moreover ... the Act gives a broad interpretation to the right to vote, recognizing that 
voting includes "all action necessary to make a vote effective." 
Id. (internal citations omitted). 

199. H.R. Rep. No. 94-196, at 57-58 (1975) ("Section 5 was a response to a common practice 
in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory 
voting laws as soon as the old ones had been struck down."). 

200. See Bossier II, 528 U.S. 320, 329 (2000) (finding the concept of retrogression to apply 
to both the "purpose" and "effects" prongs of the prohibitions found in Section 5); Beer v. United 
States, 425 U.S. 130, 141 (1976). 

20 1 . See generally Crayton, supra note 1 6. 

202. See generally Luis E. Fuentes-Rohwer, Legislative Findings, Congressional Powers, and 
the Future of the Voting Rights Act, 82 Ind. L.J. 99, 130 (2007). 

203 . See, e.g., An Introduction to the Expiring Provisions of the Voting Rights Act, supra note 
95, at 8-10 (statement of Richard L. Hasen, Professor of Law, Loyola School of Law); id. at 13-14 



232 INDIANA LAW REVIEW [Vol. 44:201 



barriers to minority political participation, these members expected that the 
provision would be in place only for a very limited time. Accordingly, this group 
grew far less comfortable with the repeated extension of these tools to address 
new political problems, especially where its application was arguably uneven or 
inequitable. 

Contrasting with this view is the claim by Section 5 advocates. Their 
understanding was that Section 5 was directed toward achieving more substantive 
changes than either of the aforementioned approaches would allow. 204 Applying 
the statute as they imagined would address multiple types of voting problems. 
And the process would remain in place until the vestiges of racial discrimination 
entirely disappeared. This conception of the remedy reflects the aim found in the 
story of Sisyphus. 205 While that character's reasons for moving the stone up the 
hill were never quite clear, he remained committed to the seemingly endless task. 

In contrast to both of these contrasting approaches, I propose a distinct way 
of defining the aims of the preclearance system. Breaking the impasse from these 
reenactments requires a new understanding that embodies elements of what each 
side desires in a refined preclearance provision. Rather than adopting an 
indefinite procedural goal (as the current defenders of Section 5 want) or one that 
is too limited to be effective (which reflects the Court's thinking and perhaps that 
of some opponents to the current law), the framers of a reinvented system should 
specifically announce that jurisdictional transformation is the goal of the 
provision. 

By transformation, I refer to a deep and durable change in the electoral 
structures and processes within a jurisdiction so that their inputs include the 
opinions of minority communities and their outcomes reliably reflect the exercise 
of that community's political power. 206 As a concept, transformation cannot be 



(statement of Samuel Issacharoff, Professor of Law, New York University Law School); The 
Continuing Need for Section 5 Pre-Clearance: Hearing Before the S. Comm. on the Judiciary, 
109th Cong. 10-12 (2006) (statement of Richard Pildes, New York University Law School) 
[hereinafter The Continuing Need for Section 5 Pre-Clearance]. 

204. See, e.g. , J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and 
the Undoing of the Second Reconstruction 53 (1999) (stating that the VRA is vital to the 
enforcement of the Fourteenth and Fifteenth Amendments); Hugh Davis Graham, Voting Rights and 
the American Regulatory State, in CONTROVERSIES IN Minority VOTING 177, 177 (Bernard 
Grofman & Chandler Davidson eds., 1992) (stating that the VRA is "one of the most effective 
instruments of social legislation in the modern era of American reform"). See generally 
Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the 
United States 264-66 (2000). 

205 . See Albert Camus, The Myth of Sisyphus, in THE MYTH OF Sisyphus AND OTHER ESSAYS 
88, 91 (Justin O'Brien trans., 1955). In this myth, the gods condemned Sisyphus to spend every 
day rolling a rock up a hill, only to have the rock fall to the bottom, requiring Sisyphus to begin his 
labors endlessly yet again. 

206. The idea for the term "transformation" is partly drawn from the program of reform of 
government and economic institutions in South Africa. See Bato Star Fishing (Pty) Ltd. v. The 
Minister ofEnvtl. Affairs 2004 (2) SA 616 (CC) at 3 (S. Afr.). There, the term relates to a broader 



2010] REINVENTING VOTING RIGHTS PRECLEARANCE 233 



easily characterized as a goal that is purely "procedural" or "substantive" in the 
manner that these terms are commonly employed in scholarly discussions. 
Instead, transformation takes aim at the basic structures and practices that inform 
governing institutions. 

A crucial element of transformation is that it is sensitive to the problems 
associated with path dependence in institutions. Covered jurisdictions are home 
to governing institutions that have historically excluded or limited the political 
involvement of racial minority groups over decades. The enduring effects of this 
long term exclusion are not comprehensively addressed by simply changing 
procedural rules. Such changes do not address the enduring advantages and 
opportunities that the institutional structure has provided for favored groups. 
Traditional voting rights remedies have certainly improved such systems with 
procedural changes, but their reforms accept as given much of the underlying 
structures in institutions. They do not encourage a more comprehensive 
consideration of the effects of years of institutional exclusion. Put differently, 
these traditional reforms do not encourage jurisdictions to start afresh in 
redesigning governing structures. 

A transformed jurisdiction would ensure access to racial and political groups 
in a given jurisdiction to join deliberations about the merits of proposed electoral 
rules and procedures. Further, transformation would call attention to the likely 
results of a change in minority communities as an indication of its merit. 207 Most 
importantly, transformation offers a specific target that can guide jurisdictions 
that wish to emerge from the preclearance system. The point of transformation 
is to organize jurisdictions to do the work of protecting minorities themselves; 
it would ultimately obviate the need for federal oversight. 

B. The Means for Reinvention 

Aside from setting a specific goal for a reinvented preclearance system, a 
proposal must also take serious account of the ways that covered jurisdictions 
can achieve this end. This aspect involves developing incentives for stakeholders 
in the relevant unit (in the 1990s version, this consisted of employees, end-level 
customers, and cabinet level officers). Unlike traditional command policies, 
which can invite opposition and shirking by those who execute the strategy, 
reinvention tends to harness the traditional interests within the targeted 
institution. 208 At the same time, reinvention advocates in the Clinton era also 



effort to shift a greater share of financial power to black Africans who were excluded from enjoying 
the wealth under the apartheid regime. This idea also is similar to the concept of unitary status in 
the school desegregation cases, in which courts have established a benchmark that determines when 
a school district no longer requires federal oversight. 

207. Importantly, I mean to distinguish a concern about quotas from the one advanced here; 
as the Court has itself acknowledged, the likely effects of a proposed change on minority 
communities is a relevant consideration in assessing its viability under Section 5. 

208. See Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Cffl. 
L. Rev. 1,13 (1995) (noting that command policies are a remnant of the Brownlow Commission, 



234 INDIANA LAW REVIEW [Vol. 44:201 



championed the adoption of quantifiable metrics within each agency to gauge 
performance over time. 209 These measures assess matters that are relevant to 
improving efficiency in the short term and chart the agency's overall progress in 
achieving its goals in the long term. 

Reinventing preclearance can utilize both of these features in order to 
improve the existing system. First, the provision should take a more explicit 
account of the relevant stakeholders in the process. The current system 
empowers only two major players in a formal preclearance review — state 
officials and the DOJ. But these are not the only groups with significant stakes 
in the outcome of a review; the concerns of minority voters, minority 
representatives, and the political parties are all relevant to whether a proposed 
change in election law will actually be enacted. 210 However, they may normally 
play only a background role in determining whether a change violates the 
provision. 211 

As the preceding discussion suggests, the additional groups that are only 
indirectly involved in the preclearance process might be interested in playing a 
more formalized role in election policy development. Perhaps because they are 
not fully involved in the review stage of the process, they also do not often find 
common cause with each other. To break the logjam, Section 5 should develop 
incentives that help to align these interests. One way of doing so is by 
encouraging two cultural norms in local jurisdictions — cooperation and 
deliberation. 212 These incentives serve the overall goal of transformation in that 
each requires actors to pay due regard to the interests of racial minorities, along 
with their other self-interested concerns. 

Further, a reinvented preclearance system should provide better guidance for 
jurisdictions that wish to emerge from federal review. Assuming that 
transformation is the appropriate goal of the system, the internal workings of 
Section 5 should all serve that aim. However, the current system does a rather 
poor job of providing specific guidelines for obtaining what some of the 2006 



which saw "'policy' as the joint domain of the President and Congress, whereas 'administration,' 
it asserted, must be under the direct and exclusive command of the President"); see also id. at 1 12 
(explaining that reinventionist economic policies encourage "government (a) to create economic 
incentives to engage in socially desirable conduct, and (b) to permit the market to decide how 
companies respond to those incentives"). 

209. See id. at 6-7 (describing Clinton administration's executive orders asserting centralized 
control over the regulatory process and evaluating Clinton's executive order as part of a 
"reinventing government" program). 

2 1 0. See, e.g. , Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups 
of the Democratic Process, 50 STAN. L. REV. 643, 668-87 (1998). 

211. Indeed, the Supreme Court has also denied these actors formal input in the review process 
by denying lawsuits by any of these actors to challenge the DOJ's administrative decision under 
Section 5 to permit a proposed election change despite potential discrimination concerns. See 
Morris v. Gressette, 432 U.S. 491, 504-05 (1977). 

212. In the final Part of this paper, I describe specific structural innovations in the preclearance 
system to encourage both of these norms in covered jurisdictions. See infra Part IV. C. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 235 



opponents described as the "clean bill of health." 213 Much of the problem relates 
to the ongoing conflict about how to tell when a jurisdiction has done enough to 
merit a bailout. 

Evident in both of the congressional reenactments of the VRA was an 
empirical debate about judging the effectiveness of the existing system. 214 To 
recount the problem briefly, Section 5 opponents argued that improved minority 
registration and voting rates, coupled with the declining number of federal 
objections to proposed changes, showed that some of the covered jurisdictions 
no longer required oversight. 215 Advocates of Section 5 viewed the same 
information with greater skepticism, claiming that this evidence merely showed 
that preclearance had effectively deterred possible violations. 216 Facing an 
impasse, the majority rejected possible amendments to change the coverage and 
bailout provisions and left the existing system (with little chance for state 
jurisdictions to effectively exit the system) unchanged. 217 

Disagreements about the value of metrics pose an intractable political 
problem. 218 One cannot test the validity of the opponents' claims without 
dismantling the preclearance system. At the same time, leaving the system in 
place without a clear way to assess progress prevents even the most ardent 
Section 5 advocates from credibly defending the provision's effectiveness. A 
reinvented system should establish criteria that reflect concerns of both 
opponents and supporters of the current preclearance system, with the 
understanding that states may pursue these metrics in order to achieve 
transformation. Some factors may include the measures that were proposed 
during the enactments, but advocates could contribute additional indicators that 



213. See generally Katz, supra note 54. Some scholars have proposed ways of interpreting 
the present statute to permit more jurisdictions the ability to bail out, and the Court itself has 
recently allowed local jurisdictions that are nested in covered states to bailout of the preclearance 
process. 

214. See, e.g. , Kristen Clarke, The Congressional Record Underlying the 2006 Voting Rights 
Act: How Much Discrimination Can the Constitution Tolerate?, 43 HARV. C.R.-C.L. L. Rev. 385, 
394 (2008). 

215. See generally An Introduction to the Expiring Provisions of the Voting Rights Act, supra 
note 95, at 8-10 (statement of Richard L. Hasen, Professor of Law, Loyola School of Law); The 
Continuing Need for Section 5 Pre-Clearance, supra note 203, at 13-14 (statement of Samuel 
Issacharoff, Professor of Law, New York University Law School). 

216. See supra note 204 and accompanying text. 

217. See Clarke, supra note 2 14, at 394 (stating that "the record shows that this discrimination 
is systemic and widespread in the covered jurisdictions, appearing at all levels of government 
including city, county, and state levels"). 

218. Attempts to increase coverage by altering the coverage formula failed because those 
seeking to expand coverage found it impossible to design a neutral trigger that would expand 
coverage without inciting strong political opposition. Attempts to alter the bailout provision to 
mollify critics who claimed that bailout was too stringent failed because there was fear it would also 
accidentally release "bad" jurisdictions from coverage. And any attempt to change the preclearance 
procedure would have turned into an unending debate on the purpose and utility of Section 5 itself. 



236 INDIANA LAW REVIEW [Vol. 44:201 



assure the full incorporation of minority political interests. 

Interestingly, some aspects of the 2006 extension point in this direction. One 
part of the statute provides funding for a DO J study to track the extent to which 
covered jurisdictions have improved levels of minority political participation. 219 
However, this directive is silent on the actual measures that are relevant in this 
review. In particular, no guidance is offered on whether matters like registration 
rates, preclearance objections, or racial polarization should be included in the 
assessment. By identifying an overall goal for the preclearance process and also 
seeking meaningful input from preclearance stakeholders about methods of 
measuring progress, the DOJ's recommendations can gain considerable 
legitimacy and avoid another reenactment debate. Accordingly, the metrics for 
the reinvented program should reflect the consensus view of these groups with 
interests in a jurisdiction's preclearance compliance. 

C. Developing Innovative Reform Ideas 

Finally, a reinvented preclearance system should encourage stakeholders to 
seek innovative ways to transform electoral structures. The ultimate success of 
the 1990s' reinvention program was its ability to spur a sustained effort within 
agencies to improve their operation through innovation. The bulk of this work 
was carried out not by Washington officials but by workers in the heart of the 
relevant agencies. 220 Ideas for improvement were based on the desires of the 
agencies' workers, which meant that solutions were tailored to the context of the 
agency. The government agency experience indicates what shifting cultural 
norms can accomplish over the long term. The standard operating procedure 
within a reinvented organization is to pursue innovative ways to accomplish tasks 
more effectively. 221 

The functions of the preclearance system could improve by incorporating this 
feature of reinvention as well. Among the most significant problems with the 
competing interests in the present system is that there is very little incentive for 
any actor to introduce new ideas to improve elections in a covered jurisdiction. 
The reason is that multiple political interests must be satisfied in order to approve 
a plan; additionally, there is inherent uncertainty in the federal review process. 
Put plainly, changing the system increases the chances that the jurisdiction will 
land in a courtroom. Faced with these barriers to innovation, election officials 
have little reason to reconsider the established election rules and structures. 

This result is a lamentable by-product of an otherwise defensible system. 
The genius of Section 5 is that it freezes existing structures in place to prevent 
states from adopting more harmful laws. 222 However, one cost is that the process 
can also stymie momentum for new policies that might actually improve the 



219. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, § 2, 120 Stat. 577. 

220. See Kamensky, supra note 153. 

221. See Breul & Kamensky, supra note 149, at 1013-14. 

222. See Shaw v. Reno, 509 U.S. 630, 657 (1993). 



2010] REINVENTING VOTING RIGHTS PRECLEARANCE 237 



political system. The inherent adversarial culture among stakeholders in some 
preclearance jurisdictions can resemble trench warfare — and a common result of 
these skirmishes is a stalemate. The jurisdiction, meanwhile, makes only the 
most minimal progress toward reforming its system. At the close of an 
enforcement period, it is no small wonder that these stakeholders differ greatly 
about the need for federal oversight. 

The politics of a reinvented preclearance system would promote cooperative 
behavior among the different interests present in a particular jurisdiction. 
Sometimes those interests would emphasize race, partisanship, or both. 223 
Reinvention would encourage the search for effective means of improving 
election structures so that the stakeholders themselves can take responsibility for 
election management. This change does not require a wholesale embrace of 
either side's position in the reenactment debates. Rather, it depends upon the 
willingness of each camp to find some particular benefit in the mutual goal of 
transformation. The traditional opponents can view these innovations as steps 
toward the jurisdiction's emergence from federal oversight. And the proponents 
of preclearance can view the same programs as more permanent protections that 
assure meaningful participation for racial minorities at all stages of the political 
process. 

Some concrete examples of such innovations should be informative. Taken 
from three different states that are part of the preclearance regime, these policies 
show how jurisdictions may craft their own ways of entrenching the 
incorporation of racial minorities. Admittedly, the scope of the institutional 
changes reviewed here is relatively minor (partly due to the internal political 
roadblocks). But the examples they suggest that a more robust level of 
innovation is possible if reinvention is taken seriously in a future legislative 
session focused on Section 5. 

1. Constitutional Revisions. — An innovation agenda can include enacting 
constitutional changes that assure consideration of the interests of racial 
minorities in developing election policies. Following its prolonged redistricting 
litigation of the 1990s, North Carolina's legislature recognized the inherent 
inefficiency in enacting district maps that would almost immediately face 
multiple court challenges. 224 The state did not receive final judicial approval for 
all of its legislative districts until shortly before the start of the 2000 line-drawing 
process. 225 Much of the debate concerned claims that the state had violated 
certain racial fairness norms. 226 Not only did the courtroom wrangling cost the 
state valuable time and money; it also damaged political alliances across lines of 
race and party that might have otherwise pursued a broader substantive agenda. 



223. See generally Tucker, supra note 69 (discussing both minority and bipartisan efforts in 
the reauthorization of the VRA). 

224 . See Richard L. Hasen, You Don 't Have to Be a Structuralist to Hate the Supreme Court 's 
Dignitary Harm Election Law Cases, 64 U. MIAMI L. REV. 465, 468 (2010). 

225. See Jocelyn F. Benson, A Shared Existence: The Current Compatibility of the Equal 
Protection Clause and Section 5 of the Voting Rights Act, 88 Neb. L. REV. 124, 154-56 (2009). 

226. Id. 



238 INDIANA LAW REVIEW [Vol. 44:201 



To avoid this problem, the legislature adopted a series of reforms in its 
redistricting provisions to avoid the problem of multiple, never-ending lawsuits. 
First, the changes included a jurisdictional provision to prevent state court 
litigants from forum shopping and created the potential for consolidating multiple 
claims. 227 A challenge to any redistricting plan would be filed in a single court 
in the state's capital, and the hearing would be conducted by a specially 
appointed panel of state judges representing the three major regions of the 
state. 228 Most importantly, the legislature added a provision laying out the 
substantive priorities that would guide the redistricting process in future years. 229 
First among these priorities was compliance with the federal rule of protecting 
the interests of racial minority groups. 230 

North Carolina's strategy of constitutional revision is not unique, but it was 
the first to fundamentally shift the interests of stakeholders in a preclearance 
jurisdiction. Democrats and Republicans alike endorsed this reform because they 
saw specific benefits in this legislation. The jurisdictional rule is sensitive to the 
correlation between region and partisanship in the design of the court panel, 
which combined judges from the heavily Republican western counties with those 
from the more Democratic eastern counties. The state entrenches the minority 
community's participation in the redistricting process, which is a positive factor 
in federal review. Additionally, the constitutional priorities for districts require 
attention to multiple legal considerations — including racial fairness. In answer 
to those who desired a constraint on traditional gerrymandering, for example, the 
rules directed line-drawers to avoid separating counties wherever possible. 231 By 
making the protection of minority political power a primary responsibility, the 
system assures that legislative and community representatives of black voters will 
have a hand in shaping the contours of election districts. 

2. Non-Political Actors. — A more common innovation route is creating non- 
partisan bodies to make important structural decisions about elections. Today, 
several states employ some form of independent commission in the process of 
designing election districts. Arizona, a Section 5 state, is a typical example. 
Members of the state redistricting commission include two nominees from each 
political party and one independent. 232 The bipartisan group develops a plan for 
state and federal election districts following a series of public hearings that 
involve a variety of community input. 233 In addition to using witness testimony 
to inform its decisions, the commission also follows criteria defined by statute. 234 



227. See Redistricting Overview, N.C. Gen. ASSEMB., http://www.ncga.state.nc.us/GIS/ 
RandR07/Overview.html (last visited Nov. 14, 2010). 

228. See id. 

229. Id. 

230. See id. 

231. Id. 

232. See Rhonda L. Barnes, Comment, Redistricting in Arizona Under the Proposition 106 
Provisions: Retrogression, Representation and Regret, 35 Ariz. St. L.J. 575, 578 (2003). 

233. Mat 578-81. 

234. Id. at 580 (citing Ariz. Const, art. IV, pt. 2, § 1(23)). 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 239 



The idea behind this innovation is that the political institutions in government are 
overrun by partisan actors who are subject to the pressures of re-election. In 
service to their party, legislators and governors may resort to manipulating the 
district drawing process without regard to the concerns of the voting public. The 
advantage of commissions is that they insulate these decisions from the undue 
influence of partisanship and gridlock. 

A reinvented preclearance system could empower commissions to address 
a wider number of election policy choices. Like redisricting, several other issues 
have inherently political consequences that have the potential to hopelessly 
divide legislatures by both party and race. The implementation of photo 
identification requirements and vote-by-mail statutes, for example, are as 
appealing to one party as they are threatening to another. Each of these policies 
also raises major concerns for its effect on the political power of racial minority 
groups. By removing the most severe partisan pressures, a commission can 
consider these policy ideas on their merits and reach decisions that reflect the 
best interests of the jurisdiction as a whole. 

A related point to make about this approach is that commissions need not 
have final decision-making authority to work. Like budget office ratings, a 
commission's findings can be just as effective in an advisory capacity. Advisory 
commissions can pressure political institutions to take account of certain interests 
that might otherwise be ignored. Christopher Elmendorf has explored how the 
operation of advisory bodies can enhance important policy choices in a variety 
of settings. 235 Among them is the constraint on political institutions that can be 
inclined toward manipulating existing rules for partisan advantage. 236 To the 
extent that these bodies can reflect the level of diversity present in the 
jurisdiction, advisory commissions may be a positive influence on the work of 
traditional political institutions. 237 This role can also constrain any effort by 
parties to supplant the principle of racial fairness in the political process. 

3. Mini-VRAs. — Finally, innovation strategies can improve the system by 
replicating the basic structure of the federal government's voting rights remedies. 
As with the antitrust arena, voting rights advocates can develop a set of "mini- 
remedies" that support and enhance protections available in the federal system. 238 
In this regard, California legislators approved a law that created the first state- 
based voting rights act in the country. 239 The California Voting Rights Act 
(CVRA) supplements rights and remedies that are currently available under the 
federal Voting Rights Act. 240 Among other things, the statute entitles groups to 



235. See Christopher S. Elmendorf, Representation Reinforcement Through Advisory 
Commissions: The Case of Election Law, 80 N.Y.U. L. REV. 1366, 1386-94 (2005). 

236. See id. at 1405-17. 

237. Id. at 1417. 

238. See, e.g., Joaquin G. Avila et al., Voting Rights in California: 1982-2006, 17 S. Cal. 
Rev. L. & Soc. Just. 1 3 1 , 1 52 (2007) (stating that the California Voting Rights Act is a significant 
improvement over Section 2). 

239. Id. 

240. See id. 



240 INDIANA LAW REVIEW [Vol. 44:201 



sue even when they are too geographically dispersed to elect a candidate of 
choice from a single member district in a county. 241 By providing evidence of 
racially polarized voting, a plaintiff is entitled under the CVRA to judicial 
remedies that include (but do not require) the imposition of proportional voting 
systems in county governments that would prevent minority vote dilution. 242 

This type of innovation serves both substantive and procedural interests. 
Substantively speaking, the CVRA expands the field for minority voters to 
pursue greater levels of political power. By eliminating the geographic 
concentration requirement that exists in federal law, the state leaves open the 
possibility that a court may find that an appropriate remedy might be an election 
model such as cumulative voting. Several scholars have found that these 
approaches offer more access for racial minority groups. 243 

There are procedural benefits from this kind of approach as well. First, the 
statute offers a greater chance for experimentation with alternative systems of 
political representation. 244 By adopting new election structures in county 
governments, scholars and policymakers can examine the effects of employing 
different remedies in a political system. Specifically, these studies can consider 
the extent to which these reforms change political mobilization, party divisions, 
and policy responsiveness. That information can be helpful for future cases in 
which courts must consider the merits of applying these remedies in other 
jurisdictions, and it can vastly enhance policy discussions about the propriety of 
incorporating these structures into the state's normal election scheme. 

Perhaps most importantly, adopting this kind of innovation can further the 
jurisdiction's march toward a day when it legislates without federal oversight. 
Section 5 opponents who want to demonstrate that a state no longer requires 
coverage might well rely upon the adoption of internal review structures as the 
most tangible proof that minority concerns will continue to be addressed in 
election-related decisions. 245 For their part, racial minority groups and other 
advocates of Section 5 should be willing to accept state -based remedial 
protection so long as it allows them to maintain a seat at the table during the 
policymaking process. With a commitment that these structures will be 
permanent parts of the state's system, this innovation would eliminate the 
uncertainties of a temporary federal protection. No longer would advocates face 
the awkward position in reenactments of conceding progress in gaining access 
to the political system while also enumerating multiple ways that the jurisdiction 
has fallen short. 



24 1 . See Thomburg v. Gingles, 478 U.S. 30, 80 ( 1 986) (holding that the federal Voting Rights 
Act makes the geographic concentration of a racial group one of the prerequisites for seeking 
statutory remedies available under Section 2). 

242. Cal. Elec. Code §§ 14025-14032 (West 2009). 

243. Such scholars, including Michael S. Kang, Lani Guinier, Kathleen L. Barber, and Lee 
Romney, suggest that cumulative voting or "instant runoff' voting is way to ensure minority 
representation. 

244. Cal. Elec. Code §§ 14025-14032 (West 2009). 

245. See supra note 203 and accompanying text. 



20 1 0] REINVENTING VOTING RIGHTS PRECLEARANCE 24 1 



Conclusion 

This Article has developed in broad strokes the basis for an alternative 
system that Congress may use to guide any future reconsideration of the 
preclearance system. The politics around this statute are exceedingly high stakes, 
and the battle lines on this issue are exceedingly well-defined. Added to this is 
the volatile confluence of the partisanship with race, which makes any 
consideration of a new approach to policymaking a tough sell. Yet necessity 
(like politics itself) tends to make strange bedfellows. The potential for a 
challenge to the constitutionality of the preclearance system makes revisiting the 
VRA a priority. 

Given the present risks inherent in simply reenacting past debates about the 
statute, this Article invites legislators to consider adopting reinvention as an 
approach. If for no other reason, the strategy provides each side in the traditional 
debate with something to embrace. For opponents who long for the day that the 
federal government plays no role in its decisionmaking, the approach helps 
identify the steps necessary to reach that goal. Fairly reflecting the desires of all 
the stakeholders in preclearance, the approach would provide a tangible route to 
a "clean bill of health." At the same time, those who have ardently fought to 
defend the preclearance system can appreciate the commitment to devise 
permanent tools that will entrench access to minority political power. With 
structures in place to encourage cooperation across lines of race and party, a 
reinvented system will promote transformed jurisdictions that give full meaning 
to the principles of preclearance. 



After Citizens United 



Michael S. Kang* 



Introduction 

Citizens United v. FEC 1 may prove to be the most important campaign 
finance decision in decades as a critical step in a transformation of campaign 
finance law under the Roberts Court. The decision explicitly overruled 
longstanding Court precedent and struck down as unconstitutional federal 
prohibitions on the use of corporate treasury funds for campaign finance 
expenditures in connection with federal elections. 2 In short, federal law that 
blocked corporations from spending treasury funds on federal campaign speech 
was struck down, and by extension, similar state laws modeled after federal law 
also were struck down as they applied to state and local elections. 3 Although the 
immediate public reaction focused on the potential for increased corporate 
spending in elections, the much larger importance of the case is the signal from 
the Court about the direction of campaign finance law going forward. 

The doctrinal payoff of Citizens United is a substantial narrowing of the 
government interest in campaign finance regulation. The permissible grounds for 
campaign finance regulation had subtly expanded under the Rehnquist Court, 
which consistently deferred to the government and upheld a variety of campaign 
finance regulations. 4 Citizens United, reflecting Justice Kennedy's views 
previously expressed mainly in dissent, represents the Roberts Court's clear 
reversal of that trend and a narrow focus on quid pro quo corruption as the 
exclusive grounds for government regulation. 5 

Although much of the immediate reaction to Citizens United focused on the 
decision's short-term impact on political spending, the doctrinal impact of the 
decision is likely to be more significant. There were several cases rising up 
through the lower courts whose complexions were transformed by Citizens 
United and the ascendance of Justice Kennedy's views on campaign finance law. 6 
Although the degree to which the Roberts Court will extend the basic logic of 
Justice Kennedy's majority opinion in Citizens United is of course uncertain, the 



* Associate Professor, Emory University School of Law. Many thanks to Bobby Ahdieh, 
Rick Garnett, Allison Hayward, Craig Holman, Lloyd Mayer, Mike Pitts, and Robert Schapiro for 
their comments on earlier drafts. 

1. 130S. Ct. 876(2010). 

2. Id. at 913. 

3. See id 

4. See, e.g., McConnell v. Fed. Election Comm'n, 540 U.S. 93 (2003), overruled in part by 
Citizens United, 130 S. Ct. 876; Fed. Election Comm'n v. Colo. Republican Fed. Campaign 
Comm., 533 U.S. 431 (2001); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377 (2000); Austin 
v. Mich. Chamber of Commerce, 494 U.S. 652 (1990). 

5. Citizens United, 130 U.S. at 908. 

6. Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 699 (9th 
Cir. 2010); SpeechNow.org v. Fed. Election Comm'n, 599 F.3d 686, 689 (D.C. Cir. 2010), petition 
for cert, filed; Emily's List v. Fed. Election Comm'n, 581 F.3d 1, 8 (D.C. Cir. 2009). 



244 INDIANA LAW REVIEW [Vol. 44:243 



application of Citizens United to these cases could transform campaign finance 
law as it has stood for decades. 

In Part I, I explain that Citizens United itself is markedly detached from 
political reality. Citizens United reinforces and depends upon the greatest 
absurdity of campaign finance law — that independent expenditures pose no threat 
of campaign finance corruption. In Part II, I explore the doctrinal consequences 
of Citizens United for the future of campaign finance law. I explain that if 
extended to its logical extremes, Citizens United undercuts the constitutionality 
of much campaign finance regulation. As a result, Citizens United is an 
important signal of the Roberts Court's direction in this area and may be a 
turning point in the development of campaign finance law. 

I. The Meaning of Citizens United 

Citizens United struck down as unconstitutional federal prohibitions on 
corporate expenditures in connection with federal elections. 7 The case arose 
when Citizens United, a small corporation with a budget of $12 million, funded 
a ninety-minute documentary about then-Senator Hillary Clinton, who was a 
candidate for the Democratic presidential nomination in 2008. 8 Citizens United 
sought to release the documentary on cable video-on-demand, as well as 
broadcast television advertisements for the documentary, within thirty days of the 
2008 primary elections. However, as a corporation, Citizens United was 
prohibited under federal law 9 from publicly distributing what amounted to 
electioneering communications in the form of the documentary and 
advertisements. 10 Citizens United initially challenged the federal prohibitions on 
several grounds, including the claim that cable video-on-demand did not 
constitute a prohibited public distribution, but it did not press the Court on the 
facial constitutionality of the federal prohibition on corporate electioneering. 
After oral argument, though, the Court surprised nearly everyone by ordering 
rebriefing and reargument on this larger question. 1 1 Only after a second briefing 
and argument, the Court decided in Citizens United that there was no 
constitutional basis for "allowing the [government to limit corporate 
independent expenditures." 12 

The majority opinion in Citizens United framed the basic issue of the case 
as whether "the [government may impose restrictions on certain disfavored 
speakers" 13 — namely, corporations — but in so doing, the Court asked the wrong 



7. Citizens United, 130 S. Ct. at 913. 

8. Id. at 887. 

9. 2 U.S.C. § 441b(b)(2) (2006), invalidated by Citizens United, 130 S. Ct. at 913. 

10. Id. § 434(f)(3) (defining "electioneering communication" as any "broadcast, cable, or 
satellite communication which . . . refers to a clearly identified candidate for [f]ederal office" made 
proximate to an election, targeted to the relevant electorate). 

1 1 . Citizens United, 130 S. Ct. at 888. 

12. Mat 913. 

13. Id. at 899. 



20 1 0] AFTER CITIZENS UNITED 245 



set of questions. Corporations are not the relevant actors whose rights we ought 
to be concerned about protecting. Corporations are not people, nor are they 
entitled to all the constitutional rights of individual citizens. But as many 
supporters of Citizens United correctly argue, we nonetheless invest institutions 
such as corporations and political parties with constitutional entitlements when 
it appropriately serves the rights of individuals who constitute those institutions. 
And yes, corporate expenditures would be a more efficient way for shareholders 
to convert treasury funds into political speech. However, all campaign finance 
regulation complicates the ability of shareholders and other individuals to direct 
funds to political speech. In other words, the fact that a government restriction 
makes shareholder speech more difficult is obviously insufficient by itself to 
justify a constitutional prohibition of that restriction — we need to know much 
more about how shareholders' expressive interests are compromised, if at all, to 
a degree that requires the Court to intervene. 

It is unclear how shareholders are inappropriately disadvantaged by 
prohibitions on corporate expenditures struck down in Citizens United. 
Shareholders are not disadvantaged by their decision to incorporate, because they 
always remain free to make independent expenditures on an unlimited basis in 
their individual capacity, just like non-shareholders and everyone else. The 
analysis might be different if shareholders were in a worse position than 
non-shareholders, but they are not. Just as non-shareholders can aggregate funds 
through a political action committee (PAC) or political party, so too can 
shareholders. Perhaps the government should allow corporate expenditures and 
simply expect non-shareholders to incorporate as well, but whether the 
Constitution prohibits the government from refusing to do so is a different 
matter. 

What functional difference does Citizens United achieve by permitting 
corporations to spend treasury funds on independent expenditures? A key 
difference is that shareholders obtain the advantage of streamlined aggregation 
through the corporation, as opposed to other entities. For non-shareholders to 
aggregate their money, they must pool funds, subject to personal income tax, by 
contributing individually to a PAC or political party. The PAC or party collects 
their pooled money, but it does so only subject to applicable restrictions on 
contributions under campaign finance law. By contrast, the post-Citizens United 
corporation may serve as both a source of funds and the pooling entity for those 
funds all at once for its shareholders. It can pool shareholder money simply by 
retaining earnings, instead of distributing dividends to shareholders who would 
then need to aggregate those funds through a separate entity. This streamlined 
aggregation not only lowers transaction costs, but also uses pre-tax dollars (for 
purposes of personal income tax) and bypasses restrictions on contributions. 14 



14. To the degree that the corporation's major purpose becomes making or receiving 
contributions and expenditures, the corporation may be classified as a "political committee" under 
federal campaign finance law that is subject to contribution limits. However, it is not clear at the 
moment that even such a corporation would be limited in the amount of its own independent 
expenditures out of its treasury funds. Thanks to Allison Hayward for suggesting this footnote. 



246 INDIANA LAW REVIEW [Vol. 44:243 



Aggregation through PACs and parties is quite inefficient by comparison. It is 
therefore difficult to understand why shareholders should be constitutionally 
entitled to this advantage. And it is also difficult to understand why speech by 
PACs and political parties, whose First Amendment credentials are at least as 
strong in this context as for-profit corporations, would receive less constitutional 
protection. 

The justification, according to Citizens United, is doctrinal consistency with 
Buckley v. Valeo} 5 Citizens United strives for consistency with the original 
determination in Buckley that there is no government interest in limiting 
independent expenditures. 16 According to Buckley, independent expenditures 
present no risk of corruption, and therefore government regulation restricting 
independent expenditures is unconstitutional regardless of the funding source. 17 
Of course, in Austin v. Michigan Chamber of Commerce, the Court engaged in 
doctrinal calisthenics to avoid this conclusion and upheld a prohibition on 
corporate expenditures. 18 Citizens United overruled Austin for this reason and 
mocked it as "not well reasoned." 19 Although this criticism is understandable in 
certain respects, Citizens United 's confidence in the original correctness of 
Buckley is not. If Austin was not well reasoned, exactly the same can be said 
about Buckley. 

Buckley is absurd as a matter of political reality in its constitutional assertion 
that contributions are potentially corrupting, but that independent expenditures 
are not at all. 20 Citizens United depends on this absurdity from Buckley, without 
any reservation about its unreality. 21 Notably, Justice Kennedy devoted only a 
single paragraph from his fifty-six-page majority opinion to dismissing the 
relevance of his recent majority opinion in Caperton v. A. T. Massey Coal Co., 22 
which recognized the corrupting potential of independent expenditures. 23 Of 
course, Caperton involved a different remedy than the government sought in 
Citizens United 24, as Justice Kennedy notes, but both cases hinged on a critical 
judgment about the plausibility of corruption from independent expenditures. In 
Caperton, Kennedy's answer was basically yes. Only a year later n Citizens 



15. See Citizens United, 130 S. Ct. at 913. 

16. Id. at 902 (citing Buckley v. Valeo, 424 U.S. 1, 47-48 (1976)). 

17. Buckley, 424 U.S. at 46, 5 1 . 

18. Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 668-69 (1970), overruled by 
Citizens United, 130 S. Ct. 876. 

19. Citizens United, 130 S. Ct. at 912. 

20. See Buckley, 424 U.S. at 261 (White, J., concurring in part and dissenting in part); C. 
Edwin Baker, Campaign Expenditures and Free Speech, 33 Harv. C.R.-C.L. L. Rev. 1 , 47 (1 998). 

21. See Citizens United, 130 S. Ct. at 909 (concluding "that independent expenditures, 
including those made by corporations, do not give rise to corruption or the appearance of 
corruption"). 

22. 129S. Ct. 2252(2009). 

23. Citizens United, 130 S. Ct. at 910 (citing Caperton v. A.T. Massey Coal Co., 129 S. Ct. 
2252, 2263-64 (2009)). 

24. Id. 



20 1 0] AFTER CITIZENS UNITED 247 



United, his answer was no. There are ways to distinguish the cases, but the 
summary dismissal of Caperton is utterly unconvincing. If the payoff from 
Citizens United is doctrinal consistency, there is no payoff at all. 

The inconsistency between Buckley and Austin, now resolved by Citizens 
United, was a tension intrinsic to campaign finance law and not necessarily a 
failing in the actual practice of campaign finance law. Campaign finance law is 
a compromise in terms of both law and democratic values. It imperfectly 
expresses tension between abstract notions of liberty and equality. It expresses 
tension between unease about government restriction of speech on one hand and 
concern about the influence of economic power on the other hand. The need for 
campaign finance law to negotiate these tensions — with legal categories that do 
not fully capture their nuances — accounts for many logical failings of Buckley, 
Austin, and McConnell v. FEC 25 that are difficult to justify as consistent First 
Amendment doctrine. 26 However, campaign finance law as a whole, over the 
course of many cases, arguably sought pragmatic balance between these legal and 
democratic values. Citizens United, by contrast, charts a very different, more 
doctrinaire course. 

Justice Kennedy and Chief Justice Roberts contended that the Court had no 
choice but to decide Citizens United on such broad grounds, 27 but the Court could 
have dispensed with Citizens United on many alternate, narrower grounds. 
Indeed, Citizens United' s legal challenges were focused overwhelmingly on just 
such narrower grounds. Citizens United had dropped its facial challenge to the 
constitutionality of the prohibition on corporate electioneering communications 
before the district court and did not try to raise it on appeal. 28 What is more, 
Citizens United did not even cite Austin in its jurisdictional statement and later 
raised the argument that Austin should be overruled only incidentally in its 
briefing on the merits. 29 The Court itself decided to focus on these broader 
questions and, on its own initiative, ordered rebriefing and reargument on them 
after initial oral argument. 

It also is silly to argue that, in Citizens United, the Court had to lump 
together for-profit and non-profit corporations because of the facts of the case. 
This argument neglects the important insight that lumping together for-profit and 
non-profit corporations might have been the Court's decided intention. If the 
Court desired a narrower ruling limited to non-profits, it could have done so on 
cleaner facts in FEC v. Wisconsin Right to Life 30 or simply waited for a better 
case — one that did not involve a non-profit that received money from for-profit 
corporations. The Court' clear insistence on overruling A ustin in Citizens United 



25. 540 U.S. 93 (2003), overruled in part by Citizens United, 130 S. Ct. 876.. 

26. See Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. DAVIS L. 
Rev. 663, 667 (1997) (characterizing Buckley as an "attempt to solve an analogical crisis by 
splitting the difference"). 

27. See Citizens United, 130 S. Ct. at 892; id. at 918-19 (Roberts, C.J., concurring). 

28. Id. at 892 (majority opinion). 

29. See id. at 932 (Stevens, J., dissenting). 

30. 551 U.S. 449, 458-60 (2007). 



248 INDIANA LAW REVIEW [Vol. 44:243 



may therefore be connected to the fact that doing so arguably required lumping 
together for-profits and non-profits. If that was the underlying judicial intention, 
it is only more reason to criticize the decision, not defend it. 

II. Citizens United — Looking Ahead 

What does Citizens United signify for the future of campaign finance law? 
Although I have criticized Citizens United, another view of Justice Kennedy's 
majority opinion is that it represents only the first step of a comprehensive 
rethinking of campaign finance law. Citizens United may not make great sense 
only because the Court is not yet finished with what is a longer process that will 
extend over many decisions and years. In this part, I present Justice Kennedy's 
view of corruption as a touchstone for the Court's campaign finance 
jurisprudence going forward and then apply it to several key issues that courts 
will face over the next couple years. The ultimate result may be a transformation 
of campaign finance law under the Roberts Court. 

A. Justice Kennedy and the Roberts Court 

Campaign finance law is an area of striking divergence by the Roberts Court 
from the jurisprudence of the Rehnquist Court that preceded it. The Rehnquist 
Court had become so deferential to the government on campaign finance 
regulation that Richard Hasen went so far as to call a series of its decisions the 
"New Deference Quartet." 31 In a line of cases that included Austin and 
McConnell, the Rehnquist Court consistently upheld campaign finance regulation 
under increasingly expansive conceptions of the government interest in 
preventing actual and apparent corruption. Austin upheld campaign finance 
regulation based on the prevention of a different form of corruption — a distortion 
of the political discourse from the corrosive effects of corporate money. 32 
McConnell upheld provisions of the Bipartisan Campaign Reform Act (BCRA) 
based on the prevention of improper influence and opportunities for abuse that 
extended beyond the usual concern about quid pro quo arrangements. 33 

The Roberts Court, by contrast, has now struck down campaign finance 
regulation by 5-4 votes in a series of cases, only the most recent and most 
dramatic of which is Citizens United. The replacement of Chief Justice 
Rehnquist and Justice O'Connor with Chief Justice Roberts and Justice Alito 
produced a clear rightward shift in the Court's campaign finance decisions. 34 In 



3 1 . Richard L. Hasen, Buckley Is Dead, Long Live Buckley: The New Campaign Finance 
Incoherence o/McConnell v. Federal Election Commission, 153 U. Pa. L. Rev. 31, 68 (2004). 

32. Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 668-69 (1990), overruled by 
Citizens United, 130 S. Ct. 876. 

33. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 188-89 (2003), overruled in part by 
Citizens United, 130 S. Ct. 876. 

34. See Daniel R. Ortiz, The Difference Two Justices Make: FEC v. Wisconsin Right to Life, 
Inc. II and the Destabilization of Campaign Finance Regulation, 1 Alb. Gov't L. Rev. 141, 142 
(2008). 



20 1 0] AFTER CITIZENS UNITED 249 



Randall v. Sorrell, the Court struck down contribution limits and expenditures 
in Vermont. 35 In Wisconsin Right to Life, Inc. v. FEC, the Court permitted an 
as-applied challenge to provisions of BCRA already upheld on a facial basis in 
McConnell. 36 Then, in Wisconsin Right to Life II, the Court held back from 
striking down those provisions outright by overruling McConnell, but the Court 
aggressively reinterpreted the holding of McConnell to limit the government's 
ability to regulate corporate and union campaign electioneering. 37 The Court 
effectively overruled critical provisions of McConnell, while denying that fact 
of the matter. By Citizens United, though, a 5-4 majority of the Court eagerly 
and explicitly acknowledged its overruling of McConnell and Austin. 3 * 

Justice Kennedy is the swing vote on the Roberts Court with regard to 
campaign finance and many other areas of law. 39 His views are quite likely to 
direct the Court's campaign finance decisions going forward from Citizens 
United, and it is for this reason that Citizens United appears to be a turning point 
for campaign finance law. Justice Kennedy's view on the government's 
constitutional interest in regulating campaign finance is quite clear — it is focused 
narrowly on the prevention of quid pro quo corruption. In McConnell, Justice 
Kennedy argued in dissent against the Court' attempt "to establish that the 
standard defining corruption is broader than conduct that presents a quid pro quo 
danger." 40 In Justice Kennedy's view, only actual or apparent quid pro quo 
corruption offers sufficient grounds for government regulation because it is the 
"single definition of corruption [that] has been found to identify political 
corruption successfully and to distinguish good political responsiveness from 
bad." 41 Justice Kennedy would therefore have struck down soft money 
prohibitions on parties who had no direct access themselves to the levers of 
government and could offer only access and influence to candidates and 
officeholders who would. The maj ority in McConnell rej ected Justice Kennedy ' s 
"crabbed view of corruption" as ignorant of "the realities of political 
fundraising." 42 However, following the replacement of two Justices and the 
Citizens United decision, Justice Kennedy's position appears now to have 
prevailed on the Roberts Court. 

Justice Kennedy's narrow view of corruption has profound implications that 
sweep across almost every aspect of campaign finance law. In Citizens United, 
Justice Kennedy cited his dissent from McConnell and declared assertively that 



35. Randall v. Sorrell, 548 U.S. 230, 262-63 (2006). 

36. Wis. Right to Life, Inc. v. Fed. Election Comm'n, 546 U.S. 410, 412 (2006). 

37. Fed. Election Comm'n v. Wis. Right to Life, Inc. 551 U.S. 449, 482 (2007). 

38. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 913-15 (2010) (overruling 
Austin and part of McConnell). 

39. See Lee Epstein & Tonja Jacobi, Super Median, 6 1 Stan. L. Rev. 37 (2008) (identifying 
Kennedy as the super median justice on the Roberts Court). 

40. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 293 (2003) (Kennedy, J., concurring 
in part and dissenting in part), overruled in part by Citizens United, 130 S. Ct. 876. 

41. Id. at 297. 

42. Id. at 152 (majority opinion). 



250 INDIANA LAW REVIEW [Vol. 44:243 



"[w]hen Buckley identified a sufficiently important governmental interest in 
preventing corruption or the appearance of corruption, that interest was limited 
to quid pro quo corruption." 43 The insufficient connection between the corporate 
and union prohibitions of 2 U.S.C. § 441b and the prevention of quid pro quo 
corruption were therefore grounds for unconstitutionality in Citizens United. But 
narrowing the government's interest in preventing corruption has consequences 
that extend well beyond the regulations struck down in Citizens Unite d because 
virtually all campaign finance regulation depends on this anti-corruption 
rationale for its constitutionality. 

B. Campaign Finance Lavs After Citizens United 

Taken to its logical extreme, Justice Kennedy's view of corruption may limit 
campaign finance restrictions to not much beyond the regulation of contributions 
to candidates and officeholders. Only candidates and officeholders possess 
access to government power that gives rise to the risk of a quid pro quo 
exchange. As Justice Kennedy argued in McConnell, "the corruption interest 
only justifies regulating candidates' and officeholders' receipt of what we can 
call the 'quids' in the quid pro quo formulation." 44 In the absence of a 
contribution to a candidate or officeholder, the government's interest in 
regulation might be similarly absent. As a result, under a robust application of 
this theory, there may be insufficient government interest in regulating 
contributions to political parties, political action committees, and interest groups 
when those funds are used only for independent expenditures. Even if the Court 
does not adopt the narrow view of corruption to this extreme, Justice Kennedy's 
view from Citizens United will nonetheless have significant influence in many 
cases that bubble up from lower courts in the years to come. 

1. Contributions. — As an initial matter, the basic logic of Citizens United 
might apply just as well to corporate contributions as to corporate independent 
expenditures. Of course, Citizens United dealt only with the federal prohibition 
on corporate expenditures, not the parallel prohibition on corporate 
contributions. 45 However, Citizens United makes clear that "the First 
Amendment does not allow political speech restrictions based on a speaker's 
corporate identity." 46 Indeed, Citizens Unite d emphasized the irrelevance of the 
corporate source of funds in the First Amendment analysis. 47 By extension, the 
corporate source of a contribution may be irrelevant as well. Although 
contribution limits might apply to corporate contributions just as they do to 
individual or committee contributions, it might be difficult to justify a flat 
discriminatory prohibition on corporate contributions, as a constitutional matter, 



43. Citizens United, 130 S. Ct. at 909. 

44. McConnell, 540 U.S. at 293 (2003) (Kennedy, J., concurring in part and dissenting in 
part). 

45. Citizens United, 130 S. Ct. 886. 

46. Id. at 903. 

47. Id. at 904. 



20 1 0] AFTER CITIZENS UNITED 25 1 



under the broad language and logic of Citizens United. 4 * 

Even more intriguing are the implications of Citizens United' s deeper 
reasoning for the regulation of contributions as a general matter, whatever their 
source. The reasoning of Citizens United placed great weight on the premises 
that (1) only contributions to candidates and officeholders pose a threat of quid 
pro quo corruption; and (2) independent expenditures do not pose that risk. 49 
Under this logic, the Court may be skeptical about a risk of quid pro quo 
corruption inherent in a contribution to someone other than a candidate or 
officeholder, at least when those funds are not later used to make a contribution 
to a candidate or officeholder. Put another way, contributions to a non-connected 
political committee that uses those funds to make only independent expenditures 
may pose no more threat of quid pro quo corruption than independent 
expenditures by the initial contributor herself. Neither the independent 
expenditure, nor the contribution to fund another's independent expenditure, 
would involve a contribution directly to a candidate or officeholder, and 
therefore neither scenario would pose the risk of quid pro quo corruption 
constitutionally necessary for government regulation. 

This extension of Citizens United was pivotal in a case recently decided by 
the District of Columbia Circuit involving just such facts. In SpeechNow.org v. 
Federal Election Commission, the D.C. Circuit considered the constitutionality 
of contribution limits as applied to a non-connected 527 organization that 
received contributions solely for the purpose of making independent 
expenditures. 50 The use of contributions to make expenditures had routinely been 
sufficient for decades under the Federal Election Campaign Act (FECA) and 
Buckley to justify government application of federal campaign restrictions — most 
importantly, contribution limits — to organizations like SpeechNow. However, 
SpeechNow did not make contributions to candidates, and thus, following 
Citizens United, it arguably posed no direct risk of quid pro quo corruption in its 
activities. 51 Under this logic, the D.C. Circuit struck down contribution limits 
and other restrictions as applied to such groups. 52 



48. In Federal Election Commission v. Beaumont, 539 U.S. 146 (2003), the Court upheld a 
federal prohibition on contributions as they apply to MCFL nonprofit corporations, even though 
such corporations were constitutionally exempt from the federal prohibition on corporate 
independent expenditures. Id. at 163. However, Beaumont was decided before Citizens United and 
relied instead on precedent much more suspicious of corporate influence on the political process 
than Citizens United. 

49. Citizens United, 130 S. Ct. at 908. 

50. SpeechNow.org v. Fed. Election Comm'n, 599 F.3d 686, 689 (D.C. Cir. 20 1 0), petition 
for cert, filed; see also Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 
684, 699 (9th Cir. 2010) (striking down as unconstitutional limits on expenditures by persons who 
have received contributions), petition for cert, filed; N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 
291-93 (4th Cir. 2008) (declaring unconstitutional a state contribution limit as applied to a 
committee making only independent expenditures). 

5 1 . SpeechNow.org, 599 F.3d at 696. 

52. Id. 



252 INDIANA LAW REVIEW [Vol. 44:243 



I argued earlier that Citizens United allows for-profit corporations to be more 
efficient aggregators of campaign funds, mainly because they effectively 
aggregate without being subject to contribution limits. However, the decision by 
the D.C. Circuit extending the reasoning of Citizens United to SpeechNow allows 
similar non-connected groups to aggregate without restriction by contribution 
limits. 53 In other words, Citizens United may have advantaged corporations 
vis-a-vis other types of collective organizations only momentarily until the FEC 
or courts extend the decision's larger logic to all groups that do not engage in 
contributions to candidates and officeholders. 

2. Soft Money. — After Citizens United, the unconstitutionality of campaign 
finance regulation is even clearer for restrictions on money used for purposes 
other than express campaign speech. Buckley limited the constitutionally 
permissible scope of government regulation to what it called "explicit words of 
advocacy," or communications that expressly advocate the election or defeat of 
a clearly identified candidate for federal office. 54 Campaign money donated to 
a recipient other than a candidate for office to fund political activities besides 
express advocacy is called "soft money." 55 These funds cover a variety of 
activities ranging from administrative expenses to voter registration drives to 
"issue advocacy" that stops short of expressly advocating the election or defeat 
of a particular candidate. 56 Following Citizens United, the Court appears poised 
to roll back regulations restricting soft money. 

Soft money does not involve a contribution to a candidate or even fund what 
the Court considers actual campaign speech in the form of express advocacy. For 
this reason, soft money is a further step removed from the threat of corruption 
than contributions to fund independent expenditures, at least under Justice 
Kennedy's conception of corruption. Although the Court in McConnell 
permitted government regulation of the receipt and use of soft money by the 
national parties, Citizens United presaged a change in direction, having already 
overruled part of McConnell. 51 

The D.C. Circuit has already begun striking down certain federal regulations 
concerning the use of soft money by non-connected committees. In Emily 's List 
v. FEC, the D.C. Circuit held that the government could not restrict the use of 
soft money by non-connected committees to the extent that soft money was used 
exclusively for purposes other than express advocacy. 58 The FEC had previously 
attempted to require non-connected committees to fund their administrative 
expenses, voter drives, and issue advocacy in part with "hard money" collected 



53. See FEC Advisory Opinion 2010-09 (July 22, 2010) (allowing a corporation that intends 
to make only independent expenditures to accept unlimited contributions from individuals for that 
purpose). 

54. Buckley v. Valeo, 424 U.S. 1, 43 (1976). 

55. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 122-23 (2003), overruled in part by 
Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010). 

56. Id. at 123-24. 

57. See Citizens United, 130 S. Ct. at 913. 

58. Emily's List v. Fed. Election Comm'n, 581 F.3d 1, 25 (D.C. Cir. 2009). 



20 1 0] AFTER CITIZENS UNITED 253 



subject to federal contribution limits, source restrictions, and disclosure 
requirements. 59 

The Supreme Court temporarily stayed its hand at a greater opportunity to 
strike down federal regulation of soft money as received by political parties in 
Republican National Committee v. Federal Election Commission.™ In that case, 
the Republican National Committee challenged prohibitions on the national 
parties ' receipt and use of soft money that was previously upheld in McConnell. 61 
The U.S. District Court for the District of Columbia upheld these prohibitions 
again, citing McConnell as precedent. 62 The Court's earlier decision in 
McConnell, though, was based in part on a broader view of corruption that 
Justice Kennedy's opinion in Citizens United appears to reject in large part. 
Now, following Citizens United, Justice Kennedy's dissenting views on party 
soft money in McConnell may eventually carry the day with a majority of the 
Court, but in RNC v. FEC, the Court declined to note probable jurisdiction and 
summarily affirmed the lower court. The facial challenge to the soft money 
prohibition was not squarely presented in the case, which was framed as an as- 
applied challenge by the RNC. It is not difficult to imagine this Court striking 
down the soft money prohibitions if squarely presented with the question, along 
with full briefing for a facial challenge. 

3. Disclosure. — The Court has always been more deferential toward 
campaign finance disclosure requirements than it has been toward outright limits 
on expenditures, contributions, and soft money. Although the Court struck down 
the prohibition on corporate independent expenditures in Citizens United, the 
Court upheld federal disclaimer and disclosure provisions requiring corporations 
to disclose their sponsorship of campaign speech. 63 These provisions, the Court 
explained, may burden speech to a degree, but they "impose no ceiling on 
campaign-related activities" or block speech. 64 

The Court's recent decision in Doe v. Reed generally signals that even the 
Roberts Court remains deferential to government compelled campaign disclosure. 
The Ninth Circuit had upheld the state-required disclosure of signed petitions to 
qualify a ballot measure that would have repudiated a new state law extending 
marriage benefits to domestic partners. 65 In Doe, the group Protect Marriage 
Washington argued that public disclosure of signed petitions would subject the 
signatories to harassment by the ballot measure's opponents, 66 along the same 
lines as harassment faced by supporters of Proposition 8 in California a couple 
years ago. Over Justice Thomas's dissent, the Court in Citizens United dismissed 



59. Mat 4-5. 

60. 698 F. Supp. 2d 150 (D.D.C.), affd, 130 S. Ct. 3544 (2010). 

61. Id. at 153. 

62. Id. at 162-63. 

63. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 913-14 (2010). 

64. Id. at 914 (quoting Buckley v. Valeo, 424 U.S. 1, 64 (1976)). 

65. Doe v. Reed, 586 F.3d 671, 674, 681 (9th Cir. 2009), affd, 130 S. Ct. 281 1 (2010). 

66. Id. at 676. 



254 INDIANA LAW REVIEW [Vol. 44:243 



a similar risk of harassment as it applied across the board to corporations. 67 
Likewise, in Doe v. Reed, the Court rejected a facial challenge to Washington's 
disclosure requirements, finding that the speculative risk of harassment was 
minor in the case. 68 However, the Court again left open the possibility of 
as-applied exceptions to prohibit disclosure if it judges the risk of harassment to 
be significant. 

Conclusion 

Citizens United marks an important turning point in campaign finance law. 
Under the Rehnquist Court, the government won nearly every major campaign 
finance case for more than a decade through McConnell v. FEC in 2003. 
However, since Chief Justice Rehnquist' s retirement, a 5-4 majority of the 
current Roberts Court has decided a series of significant campaign finance cases 
against the government. Citizens United signals the direction of the Roberts 
Court toward a larger rollback of campaign finance regulation. 



67. Citizens United, 130 S. Ct. at 980-82 (Thomas, J., concurring in part and dissenting in 
part) (describing the harassment of supporters of Proposition 8). 

68. Reed, 586 F.3d at 680-81. 



Disclosures About Disclosure 



Lloyd Hitoshi Mayer* 



Introduction 

In the wake of the Supreme Court's foundation-shifting decision in Citizens 
United v. FEC, 1 the media and other commentators could be forgiven for mostly 
overlooking a second, less controversial holding in that case. By a vote of 8-1, 
the Court upheld the disclosure and related disclaimer provisions that apply to 
independent election-related spending even as the Court removed the 
longstanding bar on corporations (and most likely unions) engaging in such 
spending. 2 In the relevant portion of the majority opinion, Justice Kennedy, 
writing for the Court, explained that the government's interest in providing 
information to voters was sufficient to justify the required public disclosure of 
not only Citizens United' s funding of the communications at issue, but also 
disclosure of who provided significant financial support to that organization. 3 
Only Justice Thomas disagreed, arguing that the risk of retaliation against those 
whose support is revealed by such disclosure is sufficiently real to render legally 
required disclosure of their identities unconstitutional. 4 

These two contrasting narratives are important because they form the factual 
basis not only for arguments relating to the constitutionality of the existing 
campaign finance disclosure rules, but also for legislative debates relating to the 
advisability of adopting and expanding such rules in the future. 5 Especially given 
the Court's decision, supporters of campaign finance regulation are turning more 
and more to disclosure rules to police campaign fundraising and spending. For 
example, Congress is considering significantly expanded disclosure and 
disclaimer requirements for political communications paid for by corporations, 
unions, and other organizations in the wake of Citizens United. 6 Many state 



* Associate Professor, Notre Dame Law School; Of Counsel, Caplin & Drysdale, 
Chartered. A.B., Stanford University, 1989; J.D., Yale Law School, 1994. I am very grateful for 
comments from Michael J. Pitts and the other participants in the Indiana Law Review's "The Law 
of Democracy" symposium and for the research assistance of Katherine Ann Sebastiano. I also 
thank the staff of the law review and particularly Ann Harris Smith for the incredibly well- 
organized symposium. 

1. 130S. Ct. 876(2010). 

2. See id. at 914, 93 1 (Stevens, J., concurring in part and dissenting in part). 

3. Mat 914-16. 

4. Id. at 980-82 (Thomas, J., concurring in part and dissenting in part). 

5. For a discussion of the constitutional issues raised by campaign finance disclosure laws, 
see Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance Reform 221-23 
(2001); Richard L. Hasen, The Surprisingly Complex Case for Disclosure of Contributions and 
Expenditures Funding Sham Issue Advocacy, 48 UCLA L. Rev. 265 (2000). 

6. See, e.g., Democracy Is Strengthened by Casting Light on Spending in Elections 
(DISCLOSE) Act, H.R.5175, 111th Cong. §§201-21,301 (2010) [hereinafter House DISCLOSE 
Act]; Democracy Is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act, S. 



256 INDIANA LAW REVIEW [Vol. 44:255 



legislatures are also considering similar expansions of disclosure and disclaimer 
rules, 7 and several have already enacted such laws. 8 The constitutional debates 
also continue, most recently in the ongoing case of Doe v. Reed, which involves 
the disclosure of the names and addresses of individuals who signed a 
referendum petition in Washington State. 9 

Yet neither the majority nor Justice Thomas provided a firm factual 
foundation for their respective narratives. The former simply asserted that 
knowing who supports or opposes a particular candidate "enables the electorate 
to make informed decisions and give proper weight to different speakers and 
messages" and provides both "shareholders and citizens with the information 
needed to hold corporations and elected officials accountable for their positions 
and supporters." 10 The latter relied heavily on anecdotal evidence of 
retaliation — specifically, the retaliation against supporters of California's 
controversial Proposition 8 relating to same-sex marriage and various attempts 
to use information disclosed under campaign finance rules to publicly identify 
supporters of candidates and causes. 1 1 Justice Thomas markedly failed, however, 
to cite more broad-based evidence regarding either the actual risk of retaliation 
(particularly outside of the Proposition 8 context) or the chilling effect, if any, 



3295, 111th Cong. §§ 101-04, 201-31 (2010) [hereinafter Senate DISCLOSE Act]; R. Sam 
Garrett, Cong. Research Serv., R4 1 054, Campaign Finance Policy After Citizens United 
v. Federal Election Commission: Issues and Options for Congress 6-7 (Feb. 1, 2010), 
available at http://assets. opencrs.com/rpts/R4 1 05420 1 0020 1 .pdf; see also Sunlight Found., A 
Comprehensive Disclosure Regime in the Wake of the Supreme Court's Decision in 
Citizens United v. Federal Election Commission (2010), http://assets.sunlightfoundation. 
com/pdf/policy/ sunlightfoundation_policy_citizens_united.pdf (arguing for a robust transparency 
regime in the wake of the Citizens United decision); L. Paige Whit akeretal., Cong. Research 
Serv., R41096, Legislative Options After Citizens United v. FEC: Constitutional and 
Legal Issues 3-8 (Mar. 8, 2010), available at http://www.fas.org/sgp/crs/misc/R41096.pdf. 

7. See Fredreka Schouten, 10 States Add Campaign Finance Laws, ABC NEWS (July 24, 
20 1 0), http://abcnews.go.com/Politics/campaign-finance-laws-emerge-states-disclose-act- 
stalled/story?id=l 1234998. 

8. See, e.g., H.R. 2788, 49th Leg., 2d Reg. Sess. (Ariz. 2010) (expanding disclosure 
requirements for independent expenditures); S. 10-203, 67th Gen. Assemb., 2d Reg. Sess. (Colo. 
2010) (same); S. 2354, 83d Gen. Assemb., 1st Sess. (Iowa 2010) (same); H.R. 4647, 79th Leg., 2d 
Reg. Sess. (W. Va. 2010) (same). 

9. See Doe v. Reed, 1 30 S. Ct. 28 1 1 (2010) (concluding that a state law requiring disclosure 
of referendum petitions was constitutional on its face; remanding for a determination whether that 
law is unconstitutional as applied to a particular petition); see also Canyon Ferry Rd. Baptist 
Church v. Unsworth, 556 F.3d 1021, 1031-35 (9th Cir. 2009) (concluding that Montana's "zero 
dollar" threshold for disclosure of de minimis in-kind contributions was unconstitutional even given 
the state's important interest in providing citizens with information about the constituencies 
supporting and opposing ballot issues). 

10. Citizens United v. FEC, 130 S. Ct. 876, 916 (2010). 

11. Id. at 980-8 1 (Thomas, J., concurring in part and dissenting in part). 



2010] DISCLOSURES ABOUT DISCLOSURE 257 



caused by the fear of retaliation. 12 The precedents cited by the majority and 
Justice Thomas also do not provide a more solid factual footing for their 
respective stories. 13 

The purpose of this Article is to consider what we in fact know about the 
truth of these two narratives. Part I addresses whether the existing disclosure and 
disclaimer rules result in more informed voters and if they do not, whether any 
disclosure and disclaimer regime would be more likely to accomplish this goal. 
This Article looks for the answer to this question in the political psychology 
literature regarding voter decisionmaking, and particularly the use by voters of 
"heuristic cues" — mental shortcuts — to reach, arguably, the same decision the 
voters would reach if they had unlimited time and interest to gather information 
about their election choices. 

Part II addresses the extent to which the existing disclosure and disclaimer 
rules result in either actual retaliation or sufficient fear of retaliation — whether 
justified or not — that financial support of candidates is chilled. The answer to 
this question is less clear, unfortunately, because while anecdotal evidence of 
actual and possible retaliation exists, little if any empirical research has been 
done on the actual extent of retaliation and the effect of the fear of retaliation on 
potential contributors' behavior. Nevertheless, the existing evidence of 
retaliation, combined with the more extensive research regarding informing 
voters, does suggest several changes to existing and proposed disclosure and 
disclaimer regimes. Such changes could both further the voters' interest and 
reduce actual and perceived risk of retaliation. 

Part III describes these recommended changes, which include both a 
reduction in the disclosure of information about "rank-and-file" contributors, 
whose specific identities have little or no informational value for voters, and an 
increase in the disclosure of information about substantial contributors, 
particularly through an expanded use of disclaimers on communications paid for 
by such contributors or the groups they support. 

I. Reward: Informing Voters 

The oft-cited trilogy of government interests in disclosure of who financially 
supports (or opposes) candidates is informing voters, deterring corruption and the 



12. See id. at 980-82. 

13. Id. at 914 (quoting Buckley v. Valeo, 424 U.S. 1, 66 (1976) (asserting without citation 
that disclosure "provid[es] the electorate with information about the sources of election-related 
spending")); id. (citing McConnell v. FEC, 540 U.S. 93, 196-97 (2003) (noting the use of 
misleading names by some organizations but otherwise simply accepting the assertion in Buckley 
that disclosure serves to more fully inform voters), overruled by Citizens United, 130 S. Ct. 876 
(2010)); id. at 915 (citing Buckley, 424 U.S. at 76 (stating that disclosure serves "to insure that the 
voters are fully informed")); id. (citing McConnell, 540 U.S. at 196) (arguing same); id. at 980-82 
(Thomas, J., concurring in part and dissenting in part) (citing no precedents that provide additional 
factual support for the retaliation narrative). 



258 INDIANA LAW REVIEW [Vol. 44:255 



appearance of corruption, and aiding enforcement of campaign spending limits. 14 
While there are other possible rationales for disclosure, including determining 
whether candidates and political parties receive adequate funding, determining 
the extent of individual (financial) participation in politics, and generally 
facilitating the study and knowledge of political behavior, it is only these three 
that have been cited as having constitutional significance. 15 

The focus here will be on the first interest — informing voters — for several 
reasons. First, the third interest — aiding enforcement of campaign spending 
limits — only applies when such limits exist (and possibly not even then as to 
disclosure to the public as opposed to a regulatory body), yet both the existing 
and proposed federal (and many state) disclosure regimes go well beyond 
disclosure of financial supporters who are subject to such limits, particularly in 
the wake of Citizens United} 6 Second, there is significant skepticism regarding 
the extent to which disclosure alone in fact deters hard-to-pro ve corruption or the 
appearance of corruption, Justice Brandeis's oft-quoted "[sjunlight is said to be 
the best of disinfectants; electric light the most efficient policeman" 17 
notwithstanding. 18 Third, the Court in Citizens United chose to rely solely on the 



14. See, e.g., McConnell, 540 U.S. at 196; Buckley, 424 U.S. at 66-68, 80-81; Robert F. 
Bauer, Not Just a Private Matter: The Purposes of Disclosure in an Expanded Regulatory System, 
6 Election L.J. 38, 38 (2007); Elizabeth Garrett, McConnell v. FEC and Disclosure, 3 Election 
L.J. 237, 239 (2004); Hasen, supra note 5, at 270. 

15. See K.D. Ewing & N.S. Ghaleigh, The Cost of Giving and Receiving: Donations to 
Political Parties in the United Kingdom, 6 ELECTION L.J. 56, 59 (2007) (listing rationales); David 
Schultz, Disclosure is Not Enough: Empirical Lessons from State Experiences, 4 ELECTION L.J. 
349, 355-56 (2005) (same); Clyde Wilcox, Designing Campaign Finance Disclosure in the States: 
Tracing the Tributaries of Campaign Finance, 4 ELECTION L.J. 371, 371, 374-75 (2005) (noting 
how disclosure has facilitated the study of political behavior). 

1 6. See FEC Adv. Op. 20 1 0- 1 1 , at 2-3 (July 22, 20 1 0), available at http://saos.nictusa.com/ 
aodocs/AO%202010-ll.pdf (opining that a federally registered, independent-expenditure-only 
political committee can solicit and accept unlimited contributions from a variety of sources); FEC 
Adv. Op. 2010-09, at 3-5 (July 22, 2010), available at http://saos.nictusa.com/saos/ 
searchao?SUBMIT=continue&PAGE NO=- 1 (opining that a federally registered, independent- 
expenditure-only political committee may solicit and accept unlimited contributions from 
individuals in the general public). 

17. Louis D. Brandeis, Other People's Money and How the Bankers Use It 92 
(Martino Publ'g 2009) (1913). 

18. See, e.g., McConnell v. FEC, 540 U.S. 93, 321 (2003) (Kennedy, J., concurring in part 
and dissenting in part) (rejecting the combating corruption rationale with respect to the disclosure 
rules at issue); Bruce Ackerman & Ian Ayres, Voting with Dollars: A New Paradigm for 
Campaign Finance 27 (2002) ("[M]andated disclosure may make us feel good about ourselves but 
it does little to insulate the political sphere from the corrupting influence of unequal wealth."); 
Brooks Jackson, Honest Graft: Big Money and the American Political Process 296-302 
(rev. ed. 1990) (arguing that disclosure of interest group campaign contributions had the effect of 
legitimizing and increasing those contributions); Bauer, supra note 14, at 40 (arguing that "the 
rational of 'deterrence' . . . holds but cannot prove that disclosure will discourage illegal or corrupt 



2010] DISCLOSURES ABOUT DISCLOSURE 259 



informing-voters interest in upholding the existing federal disclosure rules at 
issue in that case. 19 

There fortunately has been significant political-psychology research 
regarding how voters obtain information relevant to their election decisions, as 
well as broader research regarding public use of information when making 
decisions. 20 The story that emerges from this research is much more complicated 
and nuanced than the Court's statements in Citizens United would indicate. It is 
not simply enough to disclose contributor information. While existing research 
indicates that such information may help inform voters, whether it has a 
reasonable chance of doing so depends both on what specific information is 
disclosed and how that information is disseminated. 21 As political scientist 
Arthur Lupia puts it with respect to informing citizens generally: 

Scholars, legislators, and foundations both public and private 
advocate various means to enhance competence, including civic 
education campaigns and the development of informative [websites] . . . 

However, something is wrong with many of these attempts. The 



financial relationships between special interests and political actors"); Richard Briffault, Reforming 
Campaign Finance Reform: A Review q/Voting with Dollars, 9 1 Cal. L. Rev. 643, 652-53 (2003) 
(expressing skepticism that campaign finance disclosure rules discourage large donations that have 
the greatest potential for corruption and the appearance of corruption); Ewing & Ghaleigh, supra 
note 15, at 69; Elizabeth Garrett, The William J. Brennan Lecture in Constitutional Law: The 
Future of Campaign Finance Reform Laws in the Courts and in Congress, 27 Okla. City U. L. 
Rev. 665, 669-75 (2002); William McGeveran, Mrs. Mclntyre's Checkbook: Privacy Costs of 
Political Contribution Disclosure, 6 U. Pa. J. CONST. L. 1, 30-32 (2003); Wilcox, supra note 15, 
at 373 ("Even with disclosure, it is exceeding difficult to prove that corruption has occurred, and 
many observers doubt that corruption is common."). But see, e.g. , Hasen, supra note 5, at 28 1 , 283 
n.78 (appearing to accept the Buckley Court's position that at least some communications done 
independently of candidates raise corruption or appearance of corruption concerns sufficient to 
justify disclosure of who financially supports those communications); Cass R. Sunstein, Political 
Equality and Unintended Consequences, 94 COLUM. L. REV. 1 390, 1 395 ( 1 994) ("Candidates often 
know who spends money on their behalf, and for this reason, an expenditure may in some contexts 
give rise to the same reality and appearance of corruption." (internal citation omitted)). 

19. Citizens United v. FEC, 130 S. Ct. 876, 915-16 (2010). 

20. See generally Cheryl Boudreau, Making Citizens Smart: When Do Institutions Improve 
Unsophisticated Citizens' Decisions?, 31 POL. BEHAV. 287, 287-90 (2009) (compiling and 
explaining this research); Michael S. Kang, Democratizing Direct Democracy: Restoring Voter 
Competence Through Heuristic Cues and "Disclosure Plus, " 50 UCLA L. REV. 1141, 1 149-5 1 
(2003) (same). 

21. See generally Archon Fung et al., Full Disclosure: The Perils and Promise of 
Transparency 1 1 (2007) (concluding that for a targeted transparency policy to be successful, it 
must be both user-centered and sustainable); id. at 55 (arguing that the extent to which available 
information is used by decisionmakers depends on how much they value the information, the degree 
to which the information is compatible with their decision-making routines, and how 
comprehensible it is to them). 



260 INDIANA LAW REVIEW [Vol. 44:255 



problem is that they are based on flawed assumptions about how citizens 
seek and process information. One manifestation of the problem is that 
many advocates of competence-generating proposals proceed as if 
merely providing new information is sufficient to improve competence. 
However, the transmission of socially relevant information is no "Field 
of Dreams." It is not true that "if you build it, they will come." Nor is 
it true that if they come, the effect will be as advocates anticipate. 22 

Furthermore, there is still significant uncertainty regarding what information and 
which means of dissemination are most useful to voters. 23 

Applying this research to the voter information narrative requires starting 
with two important but generally uncontroversial assumptions (at least in the 
United States). First, it is desirable for voters to be well-informed about their 
electoral choices — whether candidates or ballot initiatives — such that voters can 
accurately determine and apply their personal preferences when making such 
choices. 24 Well-informed in this context means voters not only having all 
relevant information, but also understanding that information. 25 Second, many, 



22. Arthur Lupia, Deliberation Disconnected: What It Takes to Improve Civic Competence, 
65 Law & Contemp. Probs. 133, 1 34 (2002) (internal citation omitted); see also Briffault, supra 
note 1 8, at 653-55 (expressing skepticism that campaign finance disclosure rules have a significant 
effect on voter information or voter behavior). 

23. See generally James H. Kuklinski & Paul J. Quirk, Conceptual Foundations of Citizen 
Competence, 23 Pol. Behav. 285 (2001) (identifying a host of problems with the research into, 
among other topics, how voters use the information they receive). 

24. See, e.g., Michael X.DelliCarpini&ScottKeeter, What Americans Know about 
Politics and Why It Matters 5-7, 59-61, 272 (1996) (concluding that "informed citizens are 
demonstrably better citizens" because, among other reasons, they are "better able to link their 
interests with their attitudes" and "more likely to choose candidates who are consistent with their 
own attitudes"); Richard R. Lau & David P. Redlawsk, Voting Correctly, 91 Am. Pol. Sci. Rev. 
585, 586 (1997) (defining a "'correct' vote decision as one that is the same as the choice which 
would have been made under conditions of full information"); Daniel R. Ortiz, The Engaged and 
the Inert: Theorizing Political Personality Under the First Amendment, 81 Va. L. Rev. 1, 45 
(1995) (concluding that the right question to ask with respect to campaign finance regulation is 
"whether it would increase the amount and quality of deliberate, cognitive decisionmaking rather 
than just the amount of speech"); Ilya Somin, Voter Ignorance and the Democratic Ideal, 12 
Critical Rev. 413, 415 (1998) ("Ideally, then, voters should be able to choose between opposing 
candidates and their platforms on the basis of 'the preferences that people would have if their 
information were perfect.'" (internal citation omitted)). But see Craig M. Burnett et al., The 
Dilemma of Direct Democracy 4 (Univ. of So. Cal. Legal Studies, Working Paper No. 57), 
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1561926 (concluding in an 
empirical study of voting relating to a ballot initiative that most voters, regardless of their level of 
information, voted in a manner consistent with their policy preferences, although not extending this 
result to voting in candidate elections). 

25. See Kuklinski & Quirk, supra note 23, at 301-03 (questioning what it means for an 
ordinary citizen to be well-informed when making political decisions and whether any significant 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 26 1 



and probably most, voters are not well-informed, both because relevant 
information is often not available or comprehensible and because gathering and 
processing such information has costs that voters often choose not to incur given 
other demands. 26 This ignorance extends to basic information about candidates 
for elected office, 27 although there is an ongoing debate whether recall of such 
information accurately reflects the information that voters use to make 
decisions. 28 Given these assumptions, the question that existing and proposed 
campaign finance disclosure rules raise is whether they in fact help voters 
become more informed. This discussion will focus on disclosures of contributors 
who finance efforts to support or oppose candidates, both because Citizens 
United focused on spending relating to candidate elections and because others 
have already comprehensively considered this issue in the context of ballot 
initiatives. 29 

The existing disclosure and disclaimer regimes generally collect and make 
public information in two ways. First, they require candidates, political parties, 
political committees, and other organizations engaged in certain election-related 
activities to file public reports identifying financial contributors who have given 
above certain thresholds. 30 For example, federal election law requires such 
entities to identify all contributors who provide more than $200 within a 
designated period (either a calendar year or a federal election cycle), except that 
the threshold is $ 1 000 for non-candidate, non-party organizations, which have to 
disclose their contributors only because the organization makes "electioneering 



proportion of citizens can truly be said to be well-informed, as opposed to merely relatively 
informed, compared to their fellows). 

26. See, e.g., DELLlCARPlNl&KEETER,5wpranote24, at 269-72 (highlighting the first reason 
while acknowledging other influences); Anthony Downs, An Economic Theory of Democracy 
236-37 (1957) (focusing on the second reason); Edward G. Carmines & James H. Kuklinski, 
Incentives, Opportunities, and the Logic of Public Opinion in American Political Representation, 
in Information and Democratic Processes 240, 244-45 (John A. Ferejohn & James H. 
Kuklinski eds., 1990) (noting both reasons); Philip E. Converse, The Nature of Belief Systems in 
Mass Publics, in Ideology AND DISCONTENT 206, 219-23 (David E. Apter ed., 1964) (detailing 
a general lack of public knowledge with respect to the liberal-conservative political distinction or 
how that distinction applied to the two major political parties); Ilya Somin, Political Ignorance and 
the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional 
Theory, 89 IowaL. Rev. 1 287, 1 304- 1 5 (2004) (summarizing research demonstrating a general lack 
of political knowledge and providing further data supporting this finding). 

27. See, e.g., Somin, supra note 26, at 1308 (summarizing the lack of knowledge about 
candidates, among other information, in 2000). 

28. See James N. Druckman, Does Political Information Matter?, 22 Pol. COMM. 515,516 
(2005) (describing this debate). 

29. See, e.g., Elizabeth Garrett & Daniel A. Smith, Veiled Political Actors and Campaign 
Disclosure Laws in Direct Democracy, 4 ELECTION L.J. 295 (2005). 

30. See generally 2 U.S.C. § 434 (2006 & Supp. 2009) (specifying federal disclosure 
requirements); Campaign Disclosure Law Database, CAMPAIGN DISCLOSURE PROJECT (Dec. 31, 
2006), http://disclosure.law.ucla.edu (cataloguing state campaign disclosure requirements). 



262 INDIANA LAW REVIEW [Vol. 44:255 



communications." 31 For individuals, the information that must be provided is the 
person's name, mailing address, occupation, and employer. 32 All of this 
information is then made available in an Internet-accessible, searchable 
database. 33 A search of the Campaign Disclosure Law Database maintained by 
the Campaign Disclosure Project reveals that every state has similar disclosure 
laws, although reporting thresholds vary and are usually significantly lower than 
$200. 34 

Second, these regimes require the same organizations, when they pay for 
certain types of communications, to include disclaimers in those communications 
identifying the organization. 35 For example, federal election law requires 
covered communications not authorized by a candidate to state the name and 
permanent street address, telephone number, or web address of the organization 
(or individual) who paid for the communication, as well as a statement that the 
communication is not authorized by any candidate or candidate's committee. 36 
Federal election law also requires that radio or television communications by any 
person or organization other than the candidate or authorized by the candidate 

include an audio statement that " is responsible for the content of this 

advertising." 37 A search of the Campaign Disclosure Law Database maintained 
by the Campaign Disclosure Project revealed that most, although not all, states 
have similar disclaimer laws. 38 

The disclosure of financial contributors will rarely, if ever, directly inform 
voters about the qualifications or policy positions of candidates. Rather, such 
disclosures may indirectly provide such information to voters depending on what 
the voters know (or believe they know) about the contributors — their judgment, 
values, and policy positions. 39 Such indirect knowledge is commonly referred to 



31.2 U.S.C. §§ 434(b)(3)(A), (c)(2)(C), (f)(2)(E). An "electioneering communication" is 
defined as a certain communication that refers to a clearly identified candidate, reaches a certain 
number of electorate for that candidate, and is aired within a certain time window before the 
relevant election. Id. § 434(f)(3)(A)(i). 

32. Id. §431(13)(A). 

33. See Fed. Election Comm'n, Campaign Finance Disclosure Data Search, 
http://www.fec.gov/finance/disclosure/disclosure_data_search.shtml (last visited Oct. 15, 2010). 

34. See Campaign Disclosure Law Database, supra note 30 (under "Compare," scroll down 
to "F. Contributor Information" and select "7. Is there a threshold amount for reporting individual 
contributions?,'' click "select all" to search all jurisdictions, and click "Next"). 

35. See generally 2 U.S.C. § 441d; The Campaign Disclosure Law Database, supra note 30. 

36. 2 U.S.C. §441 d(a). 

37. Id. §441d(d)(2). 

38. See Campaign Disclosure Law Database, supra note 30 (under "Compare," scroll down 
to "T. Advertisement disclosure" and select "2. Are committees required to disclose their identity 
on broadcast (TV or radio) advertisements?," click "select all" to search all jurisdictions, and click 
"Next"). 

39. See Arthur Lupia, Who Can Persuade Whom?: Implications from the Nexus of 
Psychology and Rational Choice Theory, in Thinking About POLITICAL PSYCHOLOGY 51, 56 
(James H. Kuklinski ed., 2002) (concluding that "cue-giver attributes . . . affect a cue's 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 263 



as heuristic cues. 40 These mental shortcuts permit, in this situation, the voter who 
learns the identity of a financial contributor to jump to a conclusion regarding the 
supported (or opposed) candidate's qualifications for office or policy positions 
based on that contributor's information. Commonly identified heuristic cues 
include party affiliation, endorsements by interest groups, newspapers, 
celebrities, politicians, and other opinion leaders, and a candidate's personal 
characteristics and character. 41 

This brief description of heuristic cues suggests their limitations both 
generally and specifically with respect to contributor information. Perhaps most 
importantly, not all scholars who have studied this issue are convinced that all 
or most identified heuristic cues in fact tend to lead voters to act as they would 
if they were better informed. 42 These skeptics argue that cues may lead to 



persuasiveness only if they are necessary to inform a cue-seeker's perceptions of a cue-giver's 
actual knowledge or interests"). 

40. See Arthur Lupia & Mathew D. McCubbins, The Democratic Dilemma: Can 
Citizens Learn What TheyNeed to Know? 37 ( 1 998) (listing and agreeing with studies showing 
that voters use simple shortcuts when making complex decisions); SAMUEL L. Popkin, THE 
Reasoning Voter: Communication and Persuasion in Presidential Campaigns 44 ( 1 99 1 ) 
(describing the use of "information shortcuts" by voters); Paul M. Sniderman et al., Reasoning 
and Choice: Explorations in Political Psychology 19 (1991) (describing heuristics 
generally); Boudreau, supra note 20, at 289 (summarizing research about such cues); see generally 
Daniel Kahneman, Maps of Bounded Rationality: Psychology for Behavioral Economics, 93 Am. 
Econ. Rev. 1449 (2003) (discussing the state of research into intuitive, as opposed to reasoning, 
decisionmaking). 

41. See, e.g., Lupia & McCubbins, supra note 40, at 7-8 (listing possible heuristic cues 
identified by scholars); Kuklinski & Quirk, supra note 23, at 295 (same); Richard R. Lau & David 
P. Redlawsk, Advantages and Disadvantages of Cognitive Heuristics in Political Decision Making, 
45 Am. J. Pol. Sci. 951, 953-54 (2001) (dividing commonly considered candidate heuristic cues 
into five categories: party affiliation, ideology, endorsements, "viability" information from polls, 
and visual appearance); Victor C. Ottati & Robert S. Wyer, Jr., The Cognitive Mediators of 
Political Choice: Toward a Comprehensive Model of Political Information Processing, in 
Information and Democratic Processes, supra note 26, at 1 86, 2 1 1 - 1 4 (reviewing commonly 
identified heuristic cues for candidates, including party affiliation and image). 

42. See, e.g., Delli Carpini & Keeter, supra note 24, at 53-55 (arguing that while 
commonly cited heuristic cues, such as political party affiliation, are valuable, they alone are not 
sufficient to permit voters to act if they were well-informed); James H. Kuklinski & Norman L. 
Hurley, On Hearing and Interpreting Political Messages: A Cautionary Tale of Citizen Cue- 
Taking, 56 J. Pol. 729, 732-33 (1994) (noting the limited effectiveness of the views of political 
elites as heuristic cues); James H. Kuklinski & Paul J. Quirk, Reconsidering the Rational Public: 
Cognition, Heuristics, and Mass Opinion, in Elements of Reason: Cognition, Choice, and the 
Bounds of Rationality 153, 155-59, 165-67 (Arthur Lupia et al. eds., 2000) (questioning 
whether some of the claimed benefits of political heuristic cues actually exist, although not denying 
that they may be helpful to voters); Lau & Redlawsk, supra note 41, at 966-67 (concluding that 
political heuristic cues may tend to mislead less politically sophisticated voters generally and even 
relatively politically sophisticated voters in certain situations); Somin, supra note 24, at 421-23 



264 INDIANA LAW REVIEW [Vol. 44:255 



incorrect conclusions about a candidate; for example, given the breadth of 
positions held by candidates identified with each of the major parties, the label 
"Democrat" or "Republican" does not necessarily accurately convey whether the 
candidate is pro-choice or pro-life, pro-gun control or pro-gun rights, and so on. 43 
Some cues apparently used by voters — a candidate's looks, eloquence, height, or 
the place of the candidate's name on the ballot, for example — are particularly 
vulnerable in this respect. 44 Furthermore, voters who have already formed an 
impression of a candidate — including an inaccurate one — may be relatively 
immune to the influence of such cues. 45 Finally, savvy politicians, campaign 
managers, and political consultants are aware of these cues and thus may be able 
to manipulate their use to their advantage. 46 

Despite these doubts, there is significant evidence that certain heuristic cues 
do help voters to act as if they were well-, or at least better-, informed — i.e., to 
vote as they would if they had and understood more of the relevant information, 
particularly with respect to candidate voting, than the voters actually have. 47 Of 
course, such evidence does not demonstrate that voters are in fact well- 
informed — whether through heuristic cues or otherwise. This evidence 



(discussing the limits of political party affiliation as a helpful cue); id. at 424-26 (same with respect 
to opinion leaders). 

43. See, e.g., James M. Snyder, Jr. & Michael M. Ting, An Informational Rationale for 
Political Parties, 46 Am. J. Pol. Sci. 90 (2002) (modeling how party platforms may converge or 
diverge depending on various factors); Somin, supra note 24, at 422 (noting that "where party 
discipline is relatively lax, as it is in the United States, the positions of the party as a whole may be 
a poor predictor of the [positions] of key individual candidates for office"). 

44. See, e.g., Garrett, supra note 18, at 678 n.38 (citing sources relating to ballot order). 

45. See, e.g., James H. Kuklinski et al., Misinformation and the Currency of Democratic 
Citizenship, 62 J. Pol. 790, 793 (2000) (finding that people who are misinformed on a specific 
issue tend to resist correct information, although the strength of that resistance is unclear); see 
generally Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: The Problem of 
Market Manipulation, 74 N.Y.U. L. REV. 630, 646-54 (1 999) (summarizing how existing views of 
a candidate can lead to disregarding or misinterpreting new information). 

46. See, e.g., Shanto Iyengar et al., The Stealth Campaign: Experimental Studies of Slate 
Mail in California, 1 7 J.L. & Pol. 295, 300-02 (200 1 ) (describing the use of carefully designed and 
targeted "slate mailers" to influence voters); Somin, supra note 26, at 1 322 (noting that ill-informed 
voters are probably the most vulnerable to such manipulation). 

47. See, e.g., Larry M. Bartels, Uninformed Votes: Information Effects in Presidential 
Elections, 40 Am. J. Pol. Sci. 194, 217 (1996) (concluding that in the context of presidential 
elections, voters are more likely to vote in a manner consistent with their personal preferences 
apparently through the use of heuristic cues, although they do not fully match how they would vote 
if they had complete information); Arthur Lupia, Shortcuts Versus Encyclopedias: Information and 
Voting Behavior in California Insurance Reform Elections, 88 AM. POL. Sci. REV. 63, 63-64 ( 1 994) 
(concluding that in the limited context of certain ballot initiatives, knowing whether a particular 
industry supported or opposed the initiative provided a useful heuristic cue). But see Burnett et al., 
supra note 24, at 4 (concluding that in the direct democracy context, uniformed and informed voters 
tend to have equal success in applying their preferences). 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 265 



demonstrates just that heuristic cues help the voters act more as z/they are well-, 
or at least better-, informed. It would be more desirable if voters were actually 
well-informed, particularly since being well-informed would presumably have 
broader positive effects. Heuristic cues that are not misleading, however, are at 
least an improvement for the relatively uninformed. 

There are several reasons, however, to be skeptical of the proposition that 
contributor information, at least in its current form, is a helpful heuristic cue. 
First, it is not clear what cues such information provides that is not already 
provided by other existing and readily accessible heuristic cues such as party 
affiliation and endorsements. 48 These cues, like contributor information, also 
arguably have value because of what voters know about the third parties 
involved. 49 Studies that have shown the greatest positive effect from contributor 
or other supporter information has been in the context of ballot initiatives, where 
party affiliation and other candidate-related heuristic cues are often lacking. 
Here, contributor information may be one of the few, if not the only, heuristic 
cues available to voters. 50 

Second, it appears that the vast majority of contributors will not be known 
to the vast majority of voters, and so the fact of their financial support will not 
provide any useful information about a candidate to most voters. 51 That is, while 
a voter might be able to use the fact that, for example, Jane Fonda or Rush 
Limbaugh contributed to a particular candidate's campaign or to an organization 
that opposed a particular candidate to intuit correctly something about the 
relevant candidate's qualifications for office or policy positions, the vast majority 



48. See generally Cheryl Boudreau, Are Two Cues Better Than One? An Analysis of When 
Multiple Cues Improve Decisions (Mar. 25, 2009), available at http://papers.ssrn.com/sol3/ 
papers.crm?abstract_id= 1 368562 (noting that little research has been done on the effect of multiple 
cues and concluding — based on controlled experiments focusing on cues relating to the 
trustworthiness of a knowledgeable speaker — that in this context, two cues may increase the 
likelihood of a correct decision). 

49. This assumes, of course, that they know something about such third parties, but the same 
limitation applies to contributor information. See Shaun Bowler & Todd Donovan, Demanding 
Choices: Opinion, Voting, and Direct Democracy 62 (1998) (noting that endorsements are 
only a useful cue if a voter is able to recognize the cue); Somin, supra note 26, at 1 320-21 (noting 
that many heuristic Cues require a foundation of basic knowledge to be useful). 

50. See, e.g., Bowler & Donovan, supra note 49, at 168-70; Garrett & Smith, supra note 
29, at 297; Kang, supra note 20, at 1 151-53. 

51. See Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 348-49 (1995) (noting that "in 
the case of a handbill written by a private citizen who is not known to the recipient, the name and 
address of the author add little, if anything, to the reader's ability to evaluate the document's 
message"); Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1 1 72, 1 1 79 n.8 (9th Cir. 2007) (citing 
a survey that found even in the ballot measure context that it is endorsements by relatively well- 
known individuals and groups, such as interest groups, politicians, and celebrities, that voters find 
helpful); McGeveran, supra note 18, at 26-27 (finding that even if a voter correctly identifies a 
well-known person's or group's views, that voter cannot tell why that person or group donated to 
the campaign). 



266 INDIANA LAW REVIEW [Vol. 44:255 



of reported contributors are not household names within their local communities, 
much less for most of the relevant electorate. 52 After all, even candidates for 
positions such as state representative in a relatively small state usually have 
dozens, if not hundreds, of contributors above the reporting thresholds, most of 
whom are relatively unknown to the public. Some commentators have argued 
that the large volume of contributor information may have a negative effect on 
informing voters. 53 

Third and finally, it is not clear that most voters even know contributor 
information before they enter the voting booth. 54 While party affiliation is 
usually listed on the ballot, and interest group, newspaper, and celebrity 
endorsements are often circulated widely, voters generally gain access to 
contributor information only by proactively searching for such information, 
which few voters probably do even with Internet-accessible databases. 55 There 
are a number of private groups that take the available contributor information and 
attempt to render it more accessible to voters by, for example, providing maps 
that show the locations of contributors 56 or reporting only contributor information 
for supporters of particular types of candidates. 57 There is little evidence, 
however, that such attempts have been particularly successful in educating 
voters, especially before election day. Even intermediaries such as the media, 
which might be viewed as in the business of educating voters before election day, 



52. See Samuel L. Popkin & Michael A. Dimock, Political Knowledge and Citizen 
Competence, in Citizen Competence and DEMOCRATIC Institutions 1 17, 143 (Stephen L. Elkin 
& Karol Edward Soltan eds., 1999) (noting that for individuals with relatively low political 
knowledge, "party identification and well-known political figures" serve as useful cues). 

53. See, e.g., Bauer, supra note 14, at 52; Elizabeth Garrett, Voting with Cues, 37 U. RICH. 
L. Rev. 1011,1 045-47 (2003) (noting the potential for harmful "information cascades" but arguing 
that disclosure of group support for candidates is unlikely to lead to such harmful effects). This 
potential for negative effects may be increased by the fact that disclosures generally also require 
disclosure of information relating to expenditures as well as contributions. 

54. See Michael J. Malbin & Thomas L. Gais, The Day After Reform: Sobering 
Campaign Finance Lessons from the American States 46-48 (1998) (noting the difficulties 
faced in ensuring that usable contributor information reaches voters, particularly before Election 
Day). 

55. See Ackerman & Ayres, supra note 1 8, at 27 ("[I]f most voters pay scant attention to 
politics, they won't take the time to go through the lengthy lists of donors published in the name 
of 'full information.'"); see generally Richard Davis, The Web of Politics: The Internet's 
Impact on the American Political System 23 (1999) (noting that most citizens, on most 
political issues, will not take the time to seek out information regardless of how inexpensive or 
convenient it may be to do so). 

56. See, e.g., Campaign Donors: Fundrace 2008, HUFFPNGTON POST, http://fundrace. 
huffingtonpost.com (last visited Aug. 10, 2010) (allowing the identification of federal election 
contributors by geographic location). 

57. See, e.g., Prop 8 Maps, http://www.eightmaps.com (last visited Aug. 10, 2010) 
(providing maps showing the locations of supporters of California's Proposition 8, which changed 
California's constitution to prohibit same-sex marriage). 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 267 



have a variety of incentives — the need to attract readership and to demonstrate 
autonomy and objectivity, for example — that shape and limit their use of political 
contributor data. 58 There are also significant reasons to believe that the most 
effective location for providing useful information is on the ballot itself, which 
never includes contributor information. 59 

Indeed, at least some of the efforts by institutions that have the capacity to 
review and reformat contributor data appear to be designed primarily to inform 
neighbors, customers, co-workers, employers, and others with relationships to the 
contributors about the character or positions of the contributors, not to inform 
voters about the character or positions of the candidates. For example, Fundrace 
2008, a database of federal election-related contributors maintained by the 
Huffington Post website, is in prominent part designed to help locate contributors 
on a map and to ease learning about which candidates or political groups one's 
neighbors support. 60 Similarly, MSNBC sifted through federal contributor data 
to identify journalists who had made federal political contributions, often in 
apparent violation of their employers' stated policies. 61 While it is possible that 
such use of this information may have other positive effects — such as reinforcing 
journalistic neutrality in the case of the MSNBC example — it does not further the 
voter-informing interest relied upon by the Supreme Court in Citizens United. 62 

There are, however, intermediary institutions that process the raw contributor 
data and highlight aspects of the data that relate to the candidates, as opposed to 
the contributors. For example, the media often publicly identifies controversial 
or high-profile contributors, which in turn may lead to candidates and political 
groups eschewing contributors from such sources. Similarly, the media and other 
groups may identify certain candidates or political groups as being heavily 
supported by employees of a particular industry or from a particular geographic 
region. 63 Candidates and political parties, as well as the government agencies 



58. See Raymond J. La Raja, Sunshine Laws and the Press: The Effect of Campaign 
Disclosure on News Reporting in the American States, 6 ELECTION L.J. 236, 238-39 (2007) 
(discussing such concerns with respect to newspaper use of campaign finance data). 

59. E.g., Burnett et al., supra note 24, at 38-42. 

60. See Campaign Donors: Fundrace 2008, supra note 56. 

61. See Bill Dedman, The List: Journalists Who Wrote Political Checks, MSNBC.COM, 
http://www.msnbc.msn.com/id/191 13455/ns/politics (last updated July 15, 2007). 

62. See generally Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy 
Protections Against Disclosure, 53 DukeL.J. 967, 1044-47 (2003) (discussing the possible value 
of "gossip" to society, or the lack thereof). 

63. See, e.g., Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1179 n.8 (9th Cir. 
2007) (quoting a journalist crediting campaign finance disclosure laws with allowing her to inform 
readers that support for a particular ballot measure did not come primarily from small businesses, 
as had been publicly represented by its supporters, but instead from "giant tobacco [c]ompanies"); 
ProtectMarriage.com v. Bowen, 599 F. Supp. 2d 1 1 97, 1 224 n. 1 1 (E.D. Cal. 2009) (concluding that 
it is "very probable" that the California electorate would be interested in knowing the extent to 
which financial support for a ballot initiative comes from outside the state); see also Patrick M. 
Garry et al., Raising the Question of Whether Out-of-State Political Contributions May Affect a 



268 INDIANA LAW REVIEW [Vol. 44:255 



that receive the initial reports, may also review this information so as to highlight 
information of particular salience to voters before the relevant election. 64 Of 
course, if the receiving government agencies served in this filtering role instead, 
they could disclose certain patterns of information (e.g., industry or geographic 
distribution) without disclosing individual identification data. Choosing what 
patterns should be disclosed might not be a simple task; therefore, private parties 
should experiment with what the public finds useful to know. 65 

What is less clear is the extent and effect of these filtering efforts. Especially 
in an age of shrinking media budgets, there is reason to believe that such filtering 
by intermediaries is relatively limited. 66 Even if intermediaries serve in this role, 
at least three possible effects could be imagined. First, and most positively, the 
filtered information may be significantly more likely to reach and be used by 
voters than the unfiltered, individual contributor information. 67 There is, 
however, some skepticism that this is the case. 68 For example, research indicates 
that newspapers provide very limited coverage of campaign finance issues, 
especially absent a significant scandal involving contributions. 69 

Second, candidates and political groups may avoid certain contributors or 
certain concentrations of contributors because they perceive a potential for an 
adverse inference from voters, whether in fact such an adverse inference is likely 
to occur. 70 For example, voters likely view candidates and ballot initiatives that 
receive support from certain disfavored industries, such as tobacco companies, 
less favorably. Again, the existence, much less the strength, of such an effect is 
unknown. 

Third, and less positively, the intermediary organizations may selectively 
publish or emphasize certain contributor information to further their particular 



Small State's Political Autonomy: A Case Study of the South Dakota Voter Referendum on 
Abortion, 55 S.D. L. Rev. 35, 36 (2010) (raising concerns that out-of-state contributions to voter 
referendum campaigns may undermine a state's independence from other states, a risk that could 
only be known if the states where such contributions originate are known). 

64. See Garrett, supra note 53, at 1022 (noting that many voters rely on intermediaries to 
bring information to their attention). 

65. See, e.g., Investigate Money in State Politics, FOLLOW THE MONEY, http://www. 
followthemoney.org (last visited Aug. 10, 2010) (providing a variety of filters for federal and state 
political campaign contributors). But see McGeveran, supra note 1 8, at 27-28 (questioning whether 
either government or private actors have the capacity to engage in meaningful filtering). 

66. See, e.g., Malbin & GAIS, supra note 54, at 46-47. 

67. See Wilcox, supra note 15, at 377. 

68. See, e.g., MALBIN & Gais, supra note 54, at 48. 

69. See La Raja, supra note 58, at 246-47. 

70. See Ackerman & Ayres, supra note 1 8, at 27, 27 nn.2-3 (noting that candidates will 
consider the potential costs of accepting money from notorious groups, although expressing 
skepticism that such costs will be considered high enough to refuse significant contributions in most 
cases); La Raja, supra note 58, at 248 (arguing that a lack of increased scandal stories when better 
disclosure regimes are in place may indicate that politicians are more careful about who they accept 
contributions from when there is greater public disclosure of contributors). 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 269 



agendas or narratives, thereby actually distorting the information reaching voters 
and encouraging intuitive leaps to false conclusions about candidates. 71 Even 
intermediaries that are relatively unbiased, such as journalists, may be subject to 
such distortions if they rely on others to filter this information for them. 72 

There are data indicating, however, that the less prominent second aspect of 
most disclosure regimes may actually be more effective when it comes to 
informing voters. Required disclaimers on political communications are similar 
to interest group endorsements in that they demonstrate the financial commitment 
of groups or relatively wealthy individuals. Unlike the vast majority of 
contributors, such well-financed organizations (or wealthy individuals) are more 
likely to be known to voters, at least if they commonly take public positions on 
candidates as well as policy issues. 73 The fact that the disclaimer represents a 
usually substantial financial commitment reduces the chance that this cue could 
be manipulated. 74 Perhaps most importantly, because the disclaimer information 
is communicated directly to voters when they receive the organization or 
individual's message, there is evidence that it does help voters evaluate both the 
message received and the identified candidate. 75 As a constitutional matter, 
however, current law would prohibit disclaimer requirements for certain 
communications such as personally written leaflets distributed by an individual, 
as was the case in Mclntyre v. Ohio Elections Commission. 16 

The existing mass media disclaimer regimes are not without their flaws. 
While some organizations that pay for political communications are well-known 
to voters, others are "front" organizations given innocuous-sounding or otherwise 



71. See, e.g., Bauer, supra note 14, at 39 n.4, 45-46 (arguing that some intermediaries use 
disclosed information to advance their own agendas, including to generate support for more 
expansive campaign finance regulation). 

72. See La Raja, supra note 58, at 248 (identifying this concern). 

73 . See Garrett, supra note 1 8, at 680-8 1 (using well-known groups such as the NRA and the 
Sierra Club as examples of contributors who provide useful heuristic cues). 

74. See Boudreau, supra note 20, at 288 (concluding that information is generally more 
helpful and reliable if the speaker shares a common interest with the decisionmaker, faces a penalty 
for lying, or is verified by a third party). 

75. See, e.g., Kang, supra note 20, at 1180 n.151; see also Mclntyre v. Ohio Elections 
Comm'n, 514 U.S. 334, 354 n.18 (1995) (quoting Bellotti with approval but distinguishing the 
individually written and funded leaflet in that case); First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 
765, 792 n.32 (1978) (stating that in the ballot initiative context, "[c]orporate advertising, unlike 
some methods of participation in political campaigns, is likely to be highly visible. Identification 
of the source of advertising may be required as a means of disclosure, so that the people will be able 
to evaluate the arguments to which they are being subjected."); Elisabeth R. Gerber & Arthur Lupia, 
Voter Competence in Direct Legislation Elections, in CITIZEN COMPETENCE AND DEMOCRATIC 
Institutions, supra note 52, at 147, 157 (suggesting that contributor information may enhance 
voter competence if it were made more accessible to voters by, for example, "requiring candidates 
or election officials to purchase access to the print or broadcast media and disseminate the names 
of large contributors"). 

76. 514 U.S. 334(1995). 



270 INDIANA LAW REVIEW [Vol. 44:255 



misleading names that hide the true motivations and views of those who created 
and fund them. 77 Perhaps the most famous example of such a group was the 
creation of "Republicans for Clean Air" by a small group of George W. Bush 
supporters to oppose Senator McCain in the 2000 Republican primary elections. 78 
Individuals can also pay for such communications, and even wealthy individuals 
who solely fund such communications may not be known to most voters. Thus, 
disclosure of the names of wealthy individuals by themselves may not provide 
a useful cue. 

The bottom line is that the Supreme Court's simple assertion that the existing 
disclosure and disclaimer regime "enables the electorate to make informed 
decisions and give proper weight to different speakers and messages" 79 is deeply 
flawed. As noted previously, while existing research indicates that such 
information may help inform voters, whether it has a reasonable chance of doing 
so depends both on what specific information is disclosed and how that 
information is disseminated. More research is needed, but it appears that the 
most likely way to help voters make decisions as if they were fully informed is 
to limit disclosures to contributors who are likely to be known to voters and to 
expand disclosures through disclaimers in the political communications that the 
largest — and likely most well-known — contributors support. Databases of 
numerous $200 contributors (or less, in the case of most states) may serve other 
purposes — for example, enhancing enforcement of contribution limits or 
identifying contributors who are barred from making contributions such as 
foreign citizens, journalists, and charitable organizations. Yet there is little, if 
any, evidence that this information even reaches voters before election day, much 
less is useful to the voters when they decide how to vote. 80 Maintaining and 
ensuring the accuracy of such databases may also draw limited enforcement 
resources away from other aspects of campaign finance laws. 81 



77. See, e.g., McConnell v. FEC, 540 U.S. 93, 128, 197 (2003) (providing examples of such 
organizations); Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1 172, 1 179 n.8 (9th Cir. 2007) 
(listing quotes from both a political science professor and a public relations firm executive 
regarding the common use of such organizations); Mike Mclntire, Hidden Under Tax-Exempt 
Cloak, Political Dollars Flow, N.Y. TIMES, Sept. 24, 2010, at Al, available at http://www. 
nytimes.com/20 1 0/09/24/us/politics/24donate.html; see also Garrett & Smith, supra note 29, at 296 
(discussing the use of "veiled political actors" in the ballot initiative context). 

78. See Mark Sherman & Jena Heath, Bush Denies Ad Attacking McCain on Environment, 
Atlanta J.-CONST., Mar. 4, 2000, at A4; Richard W. Stevenson & Richard Perez-Pena, Wealthy 
Texan Says He Bought Anti-McCain Ads, N.Y. TIMES, Mar. 4, 2000, at Al . 

79. Citizens United v. FEC, 130 S. Ct. 876, 916 (2010). 

80. Higher thresholds for disclosure requirements also are less vulnerable to constitutional 
challenge. See Hasen, supra note 5, at 280; McGeveran, supra note 18, at 42. 

8 1 . See Todd Lochner & Bruce E. Cain, Equity and Efficacy in the Enforcement of Campaign 
Finance Laws, 11 Tex. L. Rev. 1 89 1 , 1 9 1 3- 1 5 ( 1 999) (concluding, based on a study of early 1 990s 
FEC enforcement actions, that the vast majority of claims of disclosure violations considered by 
the FEC are brought by third parties, and many such claims are trivial). But see Todd Lochner & 
Bruce E. Cain, The Enforcement Blues: Formal and Informal Sanctions for Campaign Finance 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 27 1 



Of course, if there were only a potential upside to such disclosures and no 
downside, then keeping and expanding the existing disclosure and disclaimer 
regime, however imperfect, could be justified both constitutionally and as a 
policy matter. There is a commonly asserted downside, however — the risk of 
retaliation against those identified through required disclosures, and the related 
fear of retaliation that may chill political contributions by others. It is to this 
other narrative that we now turn. 

II. Risk: Retaliation 

There are several potential harms cited by critics of the current disclosure 
and disclaimer rules, including privacy costs and administrative burdens on the 
organizations that must provide the required information as well as actual or 
potential retaliation and the related chilling effect on potential contributors. The 
focus of this Part is on the retaliation-related harms for three reasons. First, the 
retaliation-related harms are included in the privacy costs and represent the most 
verifiable part of those costs. 82 Second, while increased computer capacity may 
enhance the potential for retaliation, as detailed below, at the same time, it is 
significantly reducing the administrative costs of disclosure given the ease of 
maintaining databases and electronically filing required reports. Whether such 
administrative burdens are constitutionally significant is also unclear. 83 Third, 
it was the costs of retaliation that Justice Thomas relied on in his opinion 
objecting to the conclusion of the other eight Justices that the disclosure and 
disclaimer provisions at issue in Citizens United were constitutional. 84 

The retaliation narrative, like the informing-voters narrative, is deceptively 
simple. Public disclosure of the contributors to candidates, political groups, and 
groups that engage in certain types of political communications exposes those 



Violations, 52 Admin. L. Rev. 629, 648-50 (2000) (concluding that the California Fair Political 
Practices Commission appears to be more efficient in enforcing its disclosure-only state campaign 
finance laws than the FEC is with respect to enforcing the broader federal campaign finance laws). 

82. See, e.g., McGeveran, supra note 18, at 16-20 (discussing the privacy costs of political 
contribution disclosure — including, but not limited to, the risk of retaliation); Wilcox, supra note 
15, at 375. 

83. Compare Citizens United, 130 S. Ct. at 897-98 (finding the disclosure, recordkeeping, 
and similar administrative requirements related to forming and maintaining a political committee 
or PAC to be unconstitutionally burdensome, without mentioning the limits on contribution sources 
and amounts applicable to PACs), with FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 252-56 
(1986) (Brennan, J., plurality op.) (finding the PAC alternative unconstitutionally burdensome 
because of the administrative burdens on PACs, including limits on whom can be solicited for 
contributions); id. at 265-66 (O'Connor, J., concurring in part and concurring in judgment) 
(concluding that the PAC alternative was unconstitutionally burdensome only because it both 
requires "a more formalized organizational form and significantly reduces or eliminates the sources 
of funding for groups" with few or no "members"). 

84. Citizens United, 130 S. Ct. at 980-82 (Thomas, J., concurring in part and dissenting in 
part). 



272 INDIANA LAW REVIEW [Vol. 44:255 



contributors to a significant risk of retaliatory actions by those who disagree with 
the supported candidates or groups. 85 Such retaliation harms the contributors for 
exercising their constitutional right to make such contributions and may chill the 
exercise of that right by others sufficiently to raise constitutional concerns. 86 An 
important coda to this narrative is that the existing legal avenue of obtaining an 
exemption from the disclosure requirements on a case-by-case basis is 
insufficient to address this risk. 87 

The strength of this narrative depends on the extent to which such retaliation 
in fact occurs or is perceived to occur. As those who argued in favor of this 
narrative in Citizens United undoubtedly discovered, there is very little research 
on this point. It is likely for this reason that neither they, nor those who sought 
to discount or minimize this risk, could point to more than anecdotal evidence of 
retaliation against contributors to political causes. It is with that anecdotal 
evidence that we start. 

The available anecdotal information generally falls into five categories. 
First, government agencies in various states during the civil rights era attempted 
to obtain the member and donor rolls of local NAACP chapters in order to 
expose such members and donors to intimidation. These efforts eventually led 
to Supreme Court decisions barring such attempts and, as a result, limiting the 
ability of governments to require such disclosure absent a sufficiently important 
governmental interest. 88 Second, there are the documented instances of 
retaliation against publicly disclosed contributors to political parties self- 
identified as "communist" or "socialist." In these situations, the courts, and on 
occasion, the relevant government agencies, have granted exemptions on a case- 
by-case basis to the generally applicable campaign finance disclosure 
requirements. However, this was done only after the parties at issue provided 
evidence that there was a reasonable probability of retaliation against their 
financial supporters if their identities became publicly known. 89 Third, there are 
the flurry of stories about retaliation against publicly disclosed supporters 
following the passage of California's Proposition 8. 90 Fourth, there are stories 



85. See, e.g., McGeveran, supra note 18, at 16-20. 

86. See Buckley v. Valeo, 424 U.S. 1,71 (1976); DeGregory v. Att'y Gen., 383 U.S. 825, 
829 (1966); NAACP v. Alabama, 357 U.S. 449, 462-63 (1958). 

87. See Buckley, 424 U.S. at 74 (stating that such an exemption is constitutionally required 
when there is a reasonable probability that disclosure will lead to threats, harassment, or reprisals). 

88. See Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984); Buckley, 424 U.S. at 1 5; Kusper 
v. Pontikes, 414 U.S. 51, 58-59 (1973); Gibson v. Fla. Legis. Investig. Comm., 372 U.S. 539, 546 
(1963); Bates v. City of Little Rock, 361 U.S. 516, 525-27 (1960); NAACP, 357 U.S. at 464-66. 

89. E.g., Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 102 (1982); FEC 
v. Hall-Tyner Election Campaign Comm., 678 F.2d 4 1 6, 423 (2d Cir. 1 982) (involving a group that 
supported communist candidates); McArthur v. Smith, 716 F. Supp. 592, 593-94 (S.D. Fla. 1989) 
(involving a Socialist Workers Party candidate and his supporters); Socialist Workers Party, FEC 
Adv. Op. 2009-01, at 1, 10-11 (Mar. 20, 2009) (renewing the partial exemption from the federal 
disclosure rules for several socialist political parties and their candidates). 

90. See Scott M. Noveck, Campaign Finance Disclosure and the Legislative Process, 47 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 273 



about retaliation, or fear of retaliation, by elected officials against those that 
supported their opponents. 91 The most infamous of these instances was the "K 
Street Project," where Republican members of Congress threatened lobbying 
organizations with a loss of access to Republican lawmakers if they did not hire 
Republicans for their lobbying positions. 92 Additionally, there are other stories 
about such retaliation or apparent fear of such retaliation. 93 Finally, there has 
been at least one instance where disclosures led not to retaliation based on the 
candidate, group, or ballot initiative at issue, but based on other information 
disclosed about a contributor, such as the contributor's employer. 94 

The veracity of the retaliation stories is generally not at issue. The history 
of the civil rights movement is well known; the communist and socialist political 
parties have had to produce sufficient evidence of retaliation to qualify for 
exemption; the Proposition 8 retaliation stories were relatively widespread; the 
K Street Project undoubtedly existed; and even the apparently rare case of 
retaliation unrelated to the candidate or group at issue has been documented. The 
questions raised include: What is the extent of actual retaliation and perception 
of retaliation? and What is the extent to which the possibility of retaliation leads 
potential contributors not to contribute, or to contribute less (i.e., below the 
reporting thresholds)? 

With respect to the first question, there is surprisingly little information. 
Given the public availability of contributor information, it would appear to be a 
relatively simple task to survey a statistical valid sample of contributors to 
determine if they have experienced any form of retaliation as a result of the 
disclosure of their financial support. Yet for whatever reason, no one appears to 
have done such a survey, much less a series of surveys, focusing on contributors 
to different types of groups (e.g., candidates, political parties, other political 



Harv. J. ON Legis. 75, 98-99 (20 1 0) (gathering accounts of such retaliation); Thomas Messner, The 
Price of Prop 8, Heritage Found. (Oct. 22, 2009), http://www.heritage.org/Research/Reports/ 
2009/1 0/The-Price-of-Prop-8 (same). 

9 1 . See, e.g. , JACKSON, supra note 1 8, at 69-70, 77-8 1 (detailing how officials in both major 
parties pressured donors to change their giving patterns on threat of losing access to policymakers). 

92. See Nicholas Confessore, Welcome to the Machine: How the GOP Disciplined K Street 
and Made Bush Supreme, WASH. MONTHLY 29, 30 (Aug. 2003); Peter Perl, Absolute Truth, WASH. 
POST, May 13, 200 1 , at Wl 2; Jim VandeHei, GOP Monitoring Lobbyists ' Politics: White House, 
Hill Access May Be Affected, WASH. POST, June 10, 2002, at Al . 

93. See, e.g. , Mary Ann Akers, Kerry Puts GOP Donor on Defensive, WASH. POST, Feb. 28, 
2007, at A17 (reporting that Senator John Kerry questioned ambassadorial nominee Sam Fox 
regarding his donations to Swift Board Veterans for Truth); Kimberly A. Strassel, Challenging 
Spitzerism at the Polls, Wall St. J., Aug. 1, 2008, at Al 1 (reporting that a candidate challenging 
an incumbent state attorney general stated that many potential contributors did not donate for fear 
of retaliation by the incumbent if their names appeared in the challenger's records). 

94. See Gigi Brienza, / Got Inspired. I Gave. Then I Got Scared. , WASH. POST, July 1 , 2007, 
at B3 (recounting how the author's donations to two presidential campaigns led to her being 
publicly targeted by a radical and violent animal rights group because it learned, through public 
campaign contribution information, that she worked for Bristol-Myers Squibb). 



274 INDIANA LAW REVIEW [Vol. 44:255 



groups, or ballot initiative committees relating to various topics). 

Even generalizing the anecdotal information beyond the specific contexts in 
which undoubted retaliation occurred is problematic without further information. 
The civil rights movement was arguably a unique event in our nation's history 
for which there is no current parallel with respect to the heated emotions and 
entrenched opposition that arose. Retaliation against supporters of communist 
or socialist parties does not necessarily indicate that supporters of other parties, 
even other third parties such as the Libertarians or the Greens, are at risk. This 
was the conclusion that the Supreme Court reached in Buckley v. Valeo when it 
held that the First Amendment did not require a blanket exemption for minor 
parties from the requirement that they publicly disclose their financial 
supporters. 95 The circumstances that led to the retaliation against Proposition 8 
supporters — including the strong lesbian-gay-bisexual-transgender (LGBT) 
community in California and the perhaps surprising passage of Proposition 
8 — may not even apply to same-sex marriage ballot initiatives in other states, 
much less to candidate elections. 96 Also, the use of disclosed information for 
unrelated retaliation purposes appears to be very rare, with apparently only one 
situation identified recently. 97 

Perhaps the most troubling set of retaliation anecdotes are those relating to 
the K Street Project and stories about less well-organized state and local 
equivalents. The reason for this is if anyone actually pours through campaign 
contribution databases, it is probably elected officials and their staffs. Such 
stories are essentially the reverse of rent-seeking by elected officials, where an 
official threatens lobbyists and interest groups with action, or inaction, that will 
hurt a particular group's interests unless the lobbyist or interest group provides 
a certain level of financial support to the official's re-election campaign. 98 The 
K Street Project and similar stories suggest that elected officials may also use the 
threat of negative action or inaction to reduce employment of, or contributions 
by, lobbyists and others to individuals and groups who are likely to challenge 
these officials. 99 That said, such stories tend to be limited to lobbyists and others 



95. Buckley v. Valeo, 424 U.S. 1, 74 (1976). 

96. See, e.g., Nat'l Org. for Marriage v. McKee, 666 F. Supp. 2d 193, 206 n.74 (D. Me. 
2009) (stating "nor is there a record here indicating a pattern of threats or specific manifestations 
of public hostility towards [the plaintiffs] or showing that individuals or organizations holding 
similar views have been threatened or harmed" in litigation by anti-same sex marriage groups 
challenging Maine's campaign finance disclosure laws). But see Eliza Newlin Carney, New 
Spending Rules Mean New Backlash, Nat'l J., Aug. 30, 20 1 (reporting retaliation against Target 
Corp. and Best Buy Co. for contributions to a Minnesota political group backing an anti-gay 
gubernatorial candidate), http://www.nationaljournal.com/njonline/po_20 1 00830_3944.php. 

97. See Brienza, supra note 94. 

98. See, e.g., Bruce E. Cain, Moralism and Realism in Campaign Finance Reform, 1995 U. 
Chi.LegalF. Ill, 124-25. 

99. See Garrett & Smith, supra note 29, at 303 (noting that disclosure of groups and 
individuals that support ballot initiatives may attract retaliation by government officials in particular 
because these initiatives are often an attempt to bypass such officials). 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 275 



involved directly in seeking to influence public policy — groups serving an 
important role in our political process but representing only a small subset of the 
general public. The longevity of such efforts also appears to be limited due to the 
shifting winds of political fortune. 

It is also sometimes difficult to sort out retaliation against supporters whose 
political views were known for reasons other than the public disclosure of their 
financial contributions. For example, many of the Proposition 8 retaliation 
stories involved supporters who advertised their support through signs and 
bumper stickers. 100 While such stories provide evidence of the potential for 
retaliation against supporters whose support is publicly known only because of 
the contributor disclosure system, they do not conclusively demonstrate that there 
is a reasonable probability that such retaliation will occur. 

Finally, the degree of harm caused by the retaliation is uncertain and may be 
relatively low. Setting aside the arguably unique situation of the civil rights 
movement and the limited situation of communist and socialist political parties, 
there had been a number of alleged incidences of individuals losing their 
livelihood or being physically threatened. Much of the alleged retaliation, 
however, appears to result in nothing more than social stigma or 
embarrassment. 101 The federal district court hearing a challenge to California's 
disclosure laws by Proposition 8 supporters refused to preliminarily enjoin those 
laws in part because it found that "[plaintiffs' claim would have little chance of 
success in light of the relatively minimal occurrences of threats, harassment, and 
reprisals." 102 It should be noted, however, that after the court issued its opinion, 
the plaintiffs submitted forty-nine declarations of individuals (in addition to the 
nine originally submitted along with press reports of retaliation) alleging various 



100. See Plaintiffs' Statement of Undisputed Facts in Support of Motion for Summary 
Judgment, Appendices A & B, ProtectMarriage.com v. Bowen, 599 F. Supp. 2d 1 197 (E.D. Cal. 
2009) (No. 2:09-CV-00058-MCE-DAD) [hereinafter Plaintiffs' Statement of Undisputed Facts] 
(providing summaries of statements by fifty-eight "John Does" regarding retaliation for their 
support of Proposition 8, which included displaying yard signs and bumper stickers, making other 
public pronouncements, and contributing financially, of which at most ten appear to have had their 
support revealed solely by the required public disclosure of their financial contributions). 

101. See, e.g., id. (providing summaries of statements by fifty-eight "John Does" regarding 
retaliation for their support of Proposition 8, most of whom experienced relatively minor negative 
consequences); Declaration of Sarah E. Troupis in Support of Plaintiffs' Motion for Preliminary 
Injunction at 2-4, ProtectMarriage.com v. Bowen, 599 F. Supp. 2d 1 197 (E.D. Cal. 2009) (No. 
2:09-CV-00058-MCE-DAD) [hereinafter Troupis Declaration] (listing news stories reporting 
retaliation against Proposition 8 supporters, including death threats, physical violence, threats of 
physical violence, vandalism, and job losses, but also less serious forms of retaliation such as 
peaceful protests and negative comments); Brienza, supra note 94 (explaining how disclosure led 
to being listed as a "target" by a radical animal rights group, but no more specific threats or actions 
resulted); see also supra notes 89-91 and accompanying text (relating to government official 
retaliation). 

102. See ProtectMarriage.com v. Bowen, 599 F. Supp. 2d 1 197, 1216 (E.D. Cal. 2009); see 
also Plaintiffs' Statement of Undisputed Facts, supra note 100. 



276 INDIANA LAW REVIEW [Vol. 44:255 



forms of retaliation. 103 A related issue is the fact that many of the retaliatory 
actions are in the form of legal forms of political protests — boycotts, pickets, 
angry emails and telephone calls, and so on — that are themselves constitutionally 
protected and even celebrated as demonstrating political engagement and a 
healthy democracy, arguably providing an offsetting benefit. 104 In the recent Doe 
v. Reedox&X argument relating to disclosure of ballot initiative petition signers, 
Justice Scalia went so far as to say, "[T]he fact is that running a democracy takes 
a certain amount of civic courage. And the First Amendment does not protect 
you from criticism or even nasty phone calls when you exercise your political 
rights to legislate, or to take part in the legislative process." 105 

There is, however, at least one significant factor that suggests that retaliation, 
including criminal forms of retaliation, may be an increasing risk outside of the 
contexts and forms in which it has previously occurred. That factor is the 
growing availability of contributor information over the Internet. 1 06 For example, 
retaliation against Proposition 8 supporters may have largely been fueled by the 
creation of websites dedicated to identifying those supporters. The most well- 
known such site is www.eightmaps.com, which uses a combination of the state 
government's contributor database and Google Maps to create an easily 
searchable system for locating and identifying Proposition 8 supporters. 107 While 
that website does not overtly encourage any particular use of this information or 
characterize the persons identified in any particular way, another website called 
"Californians Against Hate" lists particular Proposition 8 supporters in its 
"Dishonor Roll," including all donors who gave $5000 or more. 108 Such sites 
also may encourage individual, as opposed to organized, retaliation attempts that 
are more likely to veer into particularly harmful or illegal areas. 

Websites of this nature are not necessarily limited to Proposition 8 
supporters. Accountable America, an organization dedicated to opposing right- 
wing and special interest policies, has an ongoing "Conservative Group Project" 
to educate the public about right-wing donors. 109 Press reports state that this 



103. ProtectMarriage.com, 599 F. Supp. 2d at 1216-17; see also Plaintiffs' Statement of 
Undisputed Facts, supra note 100. 

104. See ProtetctMarriage.com, 599 F. Supp. 2d at 1218 (noting that some of the actions 
complained of by plaintiffs are historic and lawful means of voicing dissent, including boycotts); 
Plaintiffs' Statement of Undisputed Facts, supra note 100 (providing summaries of statements by 
fifty-eight "John Does" regarding retaliation for their support of Proposition 8, including picketing, 
boycotts, and angry emails, letters, and telephone calls); Troupis Declaration, supra note 101 
(listing news stories reporting retaliation against Proposition 8 supporters, including reports of 
public protests, picketing, and boycotts). 

105. Transcript of Oral Argument at 12, Doe v. Reed, 130 S. Ct. 281 1 (2010) (No. 09-559). 

106. See, e.g., McGeveran, supra note 18, at 10-13 (describing the use of the Internet to 
increase the dissemination of political contributor data). 

1 07. See Prop 8 MAPS, supra note 57. 

108. See The Californians Against Hate Dishonor Roll, CALIFORNIANS AGAINST HATE, 
http://www.californiansagainsthate.com/dishonor-roll (last visited Aug. 10, 2010). 

109. See Accountable America, http://www.accountableamerica.com/about (last visited 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 277 



organization has also sent letters to such donors, threatening to publicize their 
financial support of right-wing causes and implying that doing so will lead to 
boycotts and similar adverse reactions (although conservative activists quoted in 
those stories appeared unconcerned). 110 While the organization has not made a 
public database of such contributors available, at least so far, it would not be 
difficult for it to do so using existing, publicly available contributor information. 

The ease of creating such a database is evidenced not only by the Proposition 
8 databases, but also by other private party established Internet databases of 
political contributors, such as the previously mentioned Fundrace 2008 ' ■ 1 and the 
newly established TransparencyData.com that combines federal and state 
campaign contribution information. 112 Other examples of such websites include 
the previously mentioned MSNBC website that discloses journalists who made 
federal political contributions and another website that collects data from state 
databases of political contributions. 113 Data like this could also potentially find 
its way to websites with broader foci, such as the "Unvarnished" website for 
posting anonymous reviews of professional reputations. 1 14 The growth of social 
networking sites also makes it easy to quickly communicate the positions of 
individuals to their friends, family, and co-workers. While recent events had led 
to a focus on retaliation against supporters of anti-same-sex marriage initiatives, 
the Internet has been used to encourage harassment outside of the political 
contribution context. 115 What remains unexplored, however, is the extent to 
which the growth of access to information through the Internet will in fact lead 
to greater incidences of retaliation. 

Research on the second question — whether the fear of retaliation changes the 
behavior of potential contributors — is almost nonexistent. 116 One survey 
prepared by Dr. Dick M. Carpenter II for the Institute for Justice found that a 
significant percentage of respondents would "think twice before donating 
money" if their name and other information, such as their address or employer, 
were released to the public as a result. 117 The survey does not reveal, however, 



Aug. 10,2010). 

1 1 0. Michael Luo, Group Plans Campaign Against G. O.P. Donors, N. Y. TIMES, Aug. 8, 2008, 
atA15. 

111. Campaign Donors: Fundrace 2008, supra note 56. 

1 12. Transparency Data, http://www.transparencydata.com (last visited Aug. 10,201 0). 

113. See Dedman, supra note 61 ; Investigate Money in State Politics, supra note 65. 

114. About Unvarnished, Unvarnished, http://www.getunvarnished.com/page/about_ 
unvarnished (last visited Aug. 10, 2010). 

115. See, e.g., Planned Parenthood of the Columbia/Williamette, Inc. v. Am. Coal, of Life 
Activists, 290 F.3d 1058, 1062-63 (9th Cir. 2002) (en banc) (upholding an injunction against the 
distribution, including over the Internet, of materials and personal information relating to abortion 
providers with a specific intent to threaten). 

116. See McGeveran, supra note 18, at 21 (noting the lack of empirical evidence regarding 
whether the prospect of disclosure deters would-be contributors). 

117. Dick M. Carpenter II, Inst, for Justice, Disclosure Costs: Unintended 
Consequences of Campaign Finance Reform 7-8 (Mar. 2007), available at 



278 INDIANA LAW REVIEW [Vol. 44:255 



what portion of the respondents would affirmatively state that they would choose 
not to donate, or donate as much, given these disclosures; nor did that study test 
whether the respondents would change their giving patters in the face of such 
disclosures (as opposed to saying that they might). The study also did not 
determine to what extent individuals knew about the existing disclosure rules and 
made contributions despite that knowledge. Similarly, summaries of sworn 
statements by Proposition 8 supporters who faced retaliation, provided in the 
context of litigation challenging California's contributor disclosure rules, often 
failed to mention whether the supporters would curtail future financial support 
for similar measures. If the summaries did address this issue, they mostly said 
the supporters would be "unlikely," "reluctant," "hesitant," or otherwise 
uncertain about providing such support without flatly ruling out doing so. 118 

One reason to take this possible "chilling" effect seriously, however, is the 
fact that people tend to be bad at estimating risk. 1 19 In particular, when presented 
with a small sample, people tend to view that sample as highly representative of 
the population from which it is drawn, and similarly, when an instance or 
occurrence can readily be brought to mind, it leads to overestimation of the 
frequency of that instance or occurrence. 120 For example, say that retaliation, 
even in the most heated situations, consists of "relatively minimal occurrences 
of threats, harassments, and reprisals," as a federal district court found with 
respect to Proposition 8 supporters. 121 If the sample of Proposition 8 supporters 
of which the public is aware consists mostly of supporters who faced retaliation, 
and the retaliation is memorable in that it threatened their livelihood or physical 
safety, 122 then the public perception may tend to be that many, if not most, 
Proposition 8 supporters faced retaliation and threats to their livelihood or 
physical safety. Such a perception, even though inaccurate, could lead to many 
potential contributors choosing to reduce or stop their contributions. The fact 
that even with disclosure, there are many (disclosed) contributors does not fully 
answer this concern 123 because such contributors represent a small portion of the 



http://www.ij.org/images/pdf_folder/other_pubs/DisclosureCosts.pdf; see also DickM. Carpenter 
II, Mandatory Disclosure for Ballot-Initiative Campaigns, 13 Indep. Rev. 567, 574-78 (2009) 
(discussing same survey). 

118. See Plaintiffs' Statement of Undisputed Facts, supra note 100. See especially the 
summaries of declarations of John Doe numbers 1, 2, 8-9, 12-13, 19, 23, 27, 30, 43, 51, 53, who 
all mention a possible effect of the retaliation they experienced on their future financial support for 
similar causes. Id. 

119. See McGeveran, supra note 18, at 21-23 (discussing the possible chilling effect on 
expression). 

1 20. See, e.g. , Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics 
and Biases, 185 SCI. 1 124, 1 125-27 (1974). 

121. ProtectMarriage.com v. Bowen, 599 F. Supp. 2d 1197, 1216 (E.D. Cal. 2009). 

1 22. See Troupis Declaration, supra note 1 1 , at 2-4 (listing news stories reporting retaliation 
against Proposition 8 supporters, including death threats, physical violence, threats of physical 
violence, vandalism, and job losses). 

123. See Hasen, supra note 5, at 280-81 (arguing that the number of disclosed soft money 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 279 



possible contributors. For example, the most successful political fundraising 
campaign in the United States — that of President Obama — received contributions 
from upwards of three million donors, but under one-sixth of those donors were 
at the relatively modest over $200 disclosure threshold. 124 While that level of 
donor participation is impressive, those numbers alone — representing less than 
1.5% of the 212 million individuals eligible to vote in the 2008 presidential 
election 125 — do not necessarily mean that there is no chilling effect caused by 
public disclosure of support for even a highly popular candidate. What the actual 
perception is with respect to the various potential types of contributions, much 
less the effect of that perception, is simply not known at this time. This potential 
chilling effect was sufficiently real, however, for the Supreme Court in Buckley 
v. Valeo to assert that "[i]t is undoubtedly true that public disclosure of 
contributions to candidates and political parties will deter some individuals who 
otherwise might contribute." 126 

It is true that a few jurisdictions have laws prohibiting the use of contributor 
data for retaliatory purposes. 127 More widespread promulgation of such laws 
might serve to limit both the actual and perceived risk of retaliation to 
contributors. 128 The track record of the existing laws is not encouraging in this 
respect, however, both because there appears to be little evidence of enforcement 
and because at least one state supreme court has struck down such a law as an 
unconstitutional restriction on free speech. 129 Similarly, the more common laws 



contributors to political parties demonstrates a lack of a chilling effect from disclosure). 

124. see anthony j. corradoetal., reform in an age of net worked campaigns: how 
to Foster Citizen Participation Through Small Donors and Volunteers 13-14 (2010), 
available at http://www.cfinst.org/books_reports/Reform-in-an-Age-of-Networked-Campaigns.pdf 
(observing President Obama's fundraising campaign, in which only 405,000 of over three million 
donors donated above an aggregate amount of $200). 

125. See Michael McDonald, 2008 General Election Turnout Rates, U.S. ELECTIONS PROJECT, 
http://elections.gmu.edu/Turnout_2008G.html (last updated Oct. 6, 2010). 

126. Buckley v. Valeo, 424 U.S. 1, 68 (1976); see also Perry v. Schwarzenegger, 591 F.3d 
1147, 1163-64 (9th Cir.) (concluding that if individuals would alter their communications and 
reconsider their political involvement if subject to disclosure, it would be sufficient to make a prima 
facie showing of chilling), cert, dismissed, 130 S. Ct. 2432 (2010). 

127. See, e.g., Wash. Rev. Code § 42.17.010 (West, Westlaw through 2010 legislation) 
(providing that campaign finance and lobbying disclosure provisions "shall be enforced so as to 
insure that the information disclosed will not be misused for arbitrary and capricious purposes and 
to insure that all persons reporting under this chapter will be protected from harassment and 
unfounded allegations based on information they have freely disclosed"). 

128. On the possible ability of such laws to reduce the perceived risk of retaliation even if they 
failed to reduce the actual incidence of retaliation, see generally Amitai Aviram, The Placebo Effect 
of Law: Law 's Role in Manipulating Perceptions, 75 GEO. WASH. L. REV. 54 (2006). 

129. See Fowler v. Neb. Accountability & Disclosure Comm'n, 330 N.W.2d 136, 141 (Neb. 
1983) (finding state laws that prohibited the use of campaign statements filed by political 
committees for "other political activity" and for "harassment" to be unconstitutional when 
addressing a case where the campaign statements included information about contributions made 



280 INDIANA LAW REVIEW [Vol. 44:255 



that bar the use of contributor data for commercial use may effectively foreclose 
the mass use of such data by background-checking companies; however, both 
types of laws are unlikely to foreclose a potential employer or consumer from 
checking such data and do not extend to non-commercial and First Amendment 
protected political activity, such as boycotts and picketing. 130 Finally, while it is 
possible for individuals and groups to seek as-applied exceptions from the 
disclosure rules based on actual or likely harassment, it may be difficult to 
anticipate such retaliation. Additionally, the very act of applying for an 
exception may expose at least some individuals to retaliation. 131 

The strength of the retaliation narrative is therefore uncertain. There is no 
doubt that in some contexts private actors and, perhaps more troubling, 
government actors have used disclosed contributor information to engage in 
retaliatory actions against contributors — ranging from legal activities such as 
boycotts or employment termination to criminal activities, including destruction 
of property or threats of physical harm. There is no reliable information, 
however, on the extent of such retaliation, which demonstrates whether it extends 
beyond the contexts identified above and whether the increased access to 
contributor information through the Internet is — or will translate into — a 
significantly greater level of retaliatory acts. Similarly, although there are 
anecdotal data (and a single survey) indicating that the perceived risk of 
retaliation from disclosure may change potential contributor behavior, neither the 
extent of that perceived risk nor the strength of its effect on behavior is known. 

III. Recommendations 

Both the extent to which disclosure of political contributor information aids 
voters in their ballot-box decisions and the extent to which such disclosure 
exposes contributors to retaliation and chills potential contributors are still in 
many ways open questions. The existing information does suggest possible 
changes to the current disclosure and disclaimer regimes that would increase the 
likelihood of aiding voters — in some instances, also minimizing the actual and 
perceived risk of retaliation. One change would be to reduce the scope of 
disclosure by significantly raising the disclosure thresholds or making public 
only certain non-identifying information for smaller contributors. Another 
change would be to expand the scope of disclaimers to facilitate delivery of 
information about major financial supporters to the voting public. 



by the committees to candidates). 

1 30. See, e.g. , 2 U.S.C. § 438(a)(4) (2006) (prohibiting the use of information from statements 
filed with the FEC "for the purpose of soliciting contributions or for commercial purposes"); Me. 
Rev. Stat. tit. 21 -A, § 1005 (West, Westlaw through 2009 legislation) ("Information concerning 
contributors contained in campaign finance reports . . . may not be used for any commercial 
purpose. . . ."); Minn. Stat. § 10A.35 (West, Westlaw through 2010 legislation) ("Information . 
. . from reports and statements filed with the [Minnesota Campaign Finance and Public Disclosure 
Board] may not be sold or used ... for a commercial purposes. . . ."). 

131. See Garrett, supra note 1 4, at 242. 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 28 1 



The first change is based on the fact that the relatively low level of current 
dollar thresholds for disclosure of a contributor's identifying information does 
not appear to be justified by the government's interest in informing voters. The 
vast majority of such specific contributor information is unlikely to help voters 
because knowing the identities of those contributors does not provide any useful 
cues regarding the candidates supported, either directly or through 
communications by independent groups. 132 At the same time, disclosure of such 
information exposes these contributors to possible retaliation, even if perhaps 
relatively rare and usually not particularly harmful. 133 There may, of course, be 
other reasons for collecting such information, including aiding enforcement of 
contribution limits, identifying geographic or industry concentrations of 
contributors, and facilitating limited disclosure to particularly interested parties 
such as shareholders, members, or donors for the group involved and facilitating 
academic research. 134 The first reason only applies when such limits exist. 
However, in the post-Citizens United world, that is not the case for expenditures 
by independent groups, which are the subject of the most recent disclosure 
proposals. In fact, the most prominent of the proposed federal legislative 
responses to Citizens United would significantly expand the scope of the 
expenditures reached by disclosure requirements. 135 While prohibitions on 
certain types of contributors — e.g., non-resident, foreign citizens, and charitable 
organizations — still exist in this context, such prohibited contributors appear to 
be both relatively rare, and if they are giving less than even the increased 
threshold, they are unlikely to have a material effect on elections. As for 
collecting information about concentrations of contributors, both for voter 
information and academic research purposes, such purposes do not require public 
disclosure of the names and complete addresses of individual contributors. 

At least in part for these reasons, several commentators have suggested only 
having public disclosure of aggregate data of voters for all but the largest 
contributors. 136 Organizations subject to the disclosure requirements could still 
report individual information to the government to permit government 
verification of the accuracy of reporting, but the publicly released information 
could be limited to aggregate data. One way to impose this limit would be to 
have the relevant government agency aggregate the data for donors below a 



1 32. See supra notes 48-72 and accompanying text. 

133. See supra Part II. 

134. See supra notes 14-15 and accompanying text. 

135. See House DISCLOSE Act, supra note 6, § 202(a) (expanding the time period for 
electioneering communications); Senate DISCLOSE Act, supra note 6, § 202(a) (same); compare 
House DISCLOSE Act, supra note 6, § 201(a) (revising the definition of an independent 
expenditure) an d Senate DISCLOSE Act, supra note 6, § 201(a) (same), with 2 U.S.C. § 431(17) 
(current definition of an independent expenditure). 

136. See Briffault, supra note 1 8, at 655 ; McGeveran, supra note 1 8, at 53-54; Noveck, supra 
note 90, at 1 07- 1 0; Kathleen M. Sullivan, Against Campaign Finance Reform, 1 998 UTAH L. REV. 
311, 327; David Lourie, Note, Rethinking Donor Disclosure After the Proposition 8 Campaign, 83 
S. Cal. L. Rev. 133, 154-63 (2009). 



282 INDIANA LAW REVIEW [Vol. 44:255 



certain threshold in various categories, such as by geographic locale or type of 
employer. If the relevant government agency lacked or was seen as lacking the 
willingness, resources, or ability to do such aggregation, another option would 
be to disclose only a portion of contributor data (e.g., city & state, zip code, 
occupation, and perhaps employer, but not name or street address) and leave it 
to private actors to then aggregate these data as they saw fit. 

Implicit in this recommendation is at least the suggestion that contributing 
to a political effort is, for smaller contributions, more akin to voting as opposed 
to most forms of speech that necessarily involve identification of the speaker. 137 
Voting is and has been for many years in the United States a private matter, with 
the secret ballot in place to prevent undue influence on the voter. 138 In contrast, 
many, although not all, forms of political speech are necessarily public, and any 
(legal) pushback the speaker receives is usually seen as simply the price one must 
pay to be politically involved. 139 This is not the case in every instance, as the 
Mclntyre decision protecting anonymous leafleting demonstrates. 140 

Space limitations prohibit an in-depth analysis of this issue, but there is at 
least one reason that suggests smaller contributions are more akin to voting than 
other forms of political expression for purposes of disclosure. Like voting, our 
political system depends on citizen participation through financing election 
campaigns in order to function. Other campaign financing systems, including 
public financing, could be implemented; under our current system, however, 
candidates, political parties, and independent groups rely primarily on the 
financial support of others to fund their political messages. If disclosure places 
such funding at risk — as it does, at least in theory and perhaps in some cases, in 
fact — it must be justified by another concern. In the case of smaller 
contributions, the most highlighted concern of informing voters is not usually 
salient for the reasons already discussed (nor is combating corruption or the 
appearance of corruption likely relevant). 141 

These considerations therefore suggest that current contributor disclosure 
thresholds should be significantly increased or that the information made publicly 



137. See Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. DAVIS L. 
Rev. 663, 672-73 (1997) (discussing whether political contributions and expenditures are more 
akin to voting or political speech). This point was noted by Heather Gerken during the symposium 
of which this Article is a part. See Heather K. Gerken, Keynote Address: What Election Law Has 
to Say to Constitutional Law, 44 IND. L. REV. 7 (2010). 

138. See generally Allison R. Hayward, Bentham & Ballots: Tradeoffs Between Secrecy and 
Accountability in How We Vote 7- 1 7 (George Mason Law & Economics Research Paper No. 09-42, 
2009), available at http://papers.ssrn. com/sol3/papers.crm?abstract_id= 1462942 (discussing the 
debates in England and the United States surrounding the eventual adoption of the secret ballot). 

139. See Transcript of Oral Argument, supra note 105, at 12. 

140. Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42 (1995) (recognizing that the 
decision to speak anonymously is protected by the First Amendment regardless of its motivation, 
which may include "fear of economic or official retaliation, by concern about social ostracism, or 
merely by a desire to preserve as much of one's privacy as possible"). 

141. See supra note 1 8 and accompanying text. 



20 1 0] DISCLOSURES ABOUT DISCLOSURE 283 



available should be limited, at least in contexts where contribution limits do not 
apply. As for concerns relating to corruption or the perception of corruption, to 
the extent they are justified, it is the higher dollar amount contributors that raise 
such concerns, not the $200 or even $1000 contributors in most instances. In 
some circumstances, however, lower dollar threshold may be justified for lower- 
cost elections, such as school boards and town councils. As Elizabeth Garrett has 
said in her commentary on McConnell, retaliation concerns "oblige drafters to 
tailor disclosure statutes narrowly to reveal only the information that promotes 
voter competence and to provide greater protection for individuals than for 
groups." 142 For the reasons previously discussed, disclosing identifying 
information for smaller contributors not only does not promote voter competence, 
but it may also expose such contributors to retaliation. 

Second, the existing disclaimer regimes do appear to be justified by the 
government's interest in informing voters, but that interest would be better served 
if those regimes were expanded and enhanced. 143 The main flaw in the existing 
system is the ability to create misleadingly named organizations that hide the true 
financial supporters behind a particular communication. 144 One way to overcome 
this weakness would be to require the disclaimers to include the largest financial 
supporters of the organization paying for the communications. 145 The most 
prominent of the proposed federal legislative responses to Citizens United do in 
fact include a requirement to disclose the five largest financial supporters, along 
with additional "stand by your ad" requirements. These would require the 
highest ranking official of the organization paying for the communication to 
personally appear in the ad — as well as, in some cases, the largest funder of the 
ad. 146 Rules to prevent layers of organizations from hiding the ultimate financial 
supporters, such as those already in place under the disclosure regime, could be 
used to ensure that the actual top contributions are included in the disclaimer. 147 

For individuals who pay for political communications, a modicum of more 
information, such as the individual's employer and position with the employer, 
might enhance the usefulness of the disclaimer. For example, when Don 
Blankenship spent over $500,000 supporting the election of Brent Benjamin to 
the West Virginia Supreme Court, it might have helped to inform voters in a 
disclaimer on those communications that Blankenship was the chairman, chief 



142. Garrett, supra note 14, at 242. 

1 43 . See Kang, supra note 20, at 1 1 7 1 , 1 1 79-8 1 (suggesting disclaimers in the context of direct 
democracy). 

144. See supra notes 77-78 and accompanying text. 

145. See Kang, supra note 20, at 1 1 80-8 1 . 

146. See House DISCLOSE Act, supra note 6, § 214(b)(2); Senate DISCLOSE Act, supra 
note 6, § 2 1 4(b)(2); see also Ronald Dworkin, The Decision That Threatens Democracy, N. Y. REV. 
OF BOOKS, May 13, 2010, at § 4, available at http://www.nybooks.com/articles/archives/ 
2010/may/13/decision-threatens-democracy (urging Congress to require identification of major 
corporate contributors of organizations that pay for election-related television advertisements in 
those advertisements). 

147. See, e.g., 2 U.S.C. § 441d (2006); 47 C.F.R. § 73.1212(e) (2009). 



284 INDIANA LAW REVIEW [Vol. 44:255 



executive officer, and president of the A.T. Massey Coal Company. 148 Similarly, 
it might have helped voters to know that Blankenship was one of the top 
contributors to "And For The Sake Of The Kids," which also supported the 
candidate and opposed his opponent, at least if that information was 
communicated to them at the same time as this group's political messages. 149 
While such information was available in required state campaign finance filings, 
West Virginia law apparently did not require it to be included in disclaimers that 
were part of the communications themselves. 

Conclusion 

More research certainly needs to be done regarding informing voters and 
retaliation with respect to public disclosure of contributor information. What we 
do know does provide some initial guidance for shaping the disclosure rules for 
political contributors in the post-Citizens United world; however, guidance is 
needed that goes beyond the relatively simple voter information and retaliation 
narratives found in that decision's opinions. Since helping voters make better 
ballot-box decisions and limiting retaliation to encourage greater political 
participation are both desirable, disclosure and disclaimer rules that appear likely 
to enhance both of these goals should become part of the existing and proposed 
disclosure regimes. 



148. See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2257 (2009). 

149. See id. 



What Changes Do Recent Supreme Court Decisions 

Require for Federal Campaign Finance 

Statutes and Regulations? 



Allison R. Hayward 



Introduction 

United States campaign finance law is riding a wave of constitutionally 
driven statutory change. After almost two decades of relative deference to 
Congress's judgment, the Supreme Court has revitalized its scrutiny of campaign 
regulations. While the Citizens United v. FEC X opinion is the most prominent and 
controversial evidence of this shift, it does not stand alone. 

The Court's decisions have extended broad First Amendment protection to 
campaign activity. But the practice of campaign finance is one not of broad 
sweeping statements but of excruciating detail. Looking forward, academics and 
practitioners need to sift through statutes and begin the task of separating the 
defensible rules from the obsolete ones. 2 It is hard to appreciate how much the 
rules of campaign finance must change to accommodate recent Court decisions, 
especially if the law is to aspire to be coherent. 

This essay is a first step in that process. It surveys the statutory provisions 
of the Federal Election Campaign Act (FECA) and selected state laws and 
identifies those that are constitutionally suspect in light of recent decisions. It 
follows a litany familiar to campaign practitioners by first considering what may 
have changed in the doctrine of campaign finance limits. It then moves on to 
evaluate the prohibitions in federal campaign finance law, including the second 
order restrictions on corporations and labor union "facilitation." 3 Finally, it 
addresses reporting requirements and other disclosures mandated in the statute. 

I. Limits 

Campaign finance limits come in two basic forms. The first, spending limits, 
have been constitutionally restricted to "voluntary" programs since Buckley v. 
Valeo. 4 The second, contribution limits to candidates and political committees, 
have generally passed constitutional scrutiny, 5 although present appellate court 
decisions, if upheld, may change the landscape in interesting ways. 6 A hybrid of 
these limits, the aggregate limit on an individual's contributions to federal 



* Ms. Hayward is Vice President for Policy at the Center for Competitive Politics and an 
election law expert and practitioner in Washington, D.C. and California. From July 2006 to May 
2010, Hayward was Assistant Professor of Law at George Mason University School of Law. 

1. 130S. Ct. 876(2010). 

2. Federal campaign finance law is codified at 2 U.S.C. §§ 43 1-57 (2006 & Supp. 2009). 

3. See 11 C.F.R. § 114.2(f)(1) (2010). 

4. 424 U.S. 1, 18-21(1976). 

5. See discussion infra Part LB. 

6. See Buckley, 424 U.S. at 24; SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). 



286 INDIANA LAW REVIEW [Vol. 44:285 



candidates and committees, may have an uncertain future. 7 

A. Spending Limits 

At present, federal campaign finance law limits the total expenditures of 
presidential campaigns that opt into the voluntary general election campaign 
finance subsidy or the matching funds available for presidential primary 
candidates. 8 This program complies with the Court's Buckley v. Valeo holding 
that mandatory spending limits are unconstitutional, but voluntary spending limits 
coupled with incentives are constitutional. 9 The recent Randall v. Sorrell case 
gave the Court an opportunity to reconsider this position, but the Court held 
firm. 10 These incentives cannot be so generous as to make the "choice" between 
self-funding and tax funding elusive and the program an involuntary one in 
reality. 

In 2008, the Supreme Court brought into play another factor to consider in 
challenging these programs in Davis v. FEC. U The Court rejected a federal rule 
that would have allowed candidates facing wealthy opponents to raise money at 
higher contribution rates. 12 While this decision did not implicate federal subsidies 
of campaigns, many state programs provided additional resources to candidates 
in similar situations. 13 

The Court in Davis rejected any claim that there was a permissible 
governmental interest in "leveling" up campaign funds. 14 It observed that no 
precedent supported a scheme that gave candidates running for the same office 
in the same election different contribution limits. 15 The effect of this law was to 
repress the speech of the self-funding candidate because it would "imposfe] 
different contribution and coordinated party expenditure limits on candidates 
vying for the same seat." 16 As a result, tax financing programs that provide 
additional tax funding for candidates running against wealthy self-funders may 
be vulnerable to a similar challenge. 17 



7. See, e.g., 2 U.S.C. § 441a(a)(3) (2006), invalidatedinpartbySpeechNow.org, 599 F.3d 
at 696. 

8. See 26 U.S.C. § 9004 (2006 & Supp. 2008). 

9. Buckley, 424 U.S. at 19-21. 

10. 548 U.S. 230, 243-44 (2006) (finding neither of respondents' arguments to overturn or 
limit Buckley's scope persuasive). 

11. 128S. Ct. 2759(2008). 

12. Id. at 2111-1 At (holding unconstitutional the so-called "Millionaire's Amendment" 
codified at 2 U.S.C. § 44 la- 1(a)(1)). 

13. See N.C. Right to Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 
427, 432 (4th Cir. 2008); Day v. Holahan, 34 F.3d 1356, 1359 (8th Cir. 1994). 

14. Davis, 128 S. Ct. at 2773-74. 

15. Id. at 2114. 

16. Id. 

17. See McComish v. Brewer, No. 08-1550, 2010 WL 2292213 (D. Ariz. Jan. 20, 2010), 
rev'd, McComish v. Bennett, 61 1 F. 3d 510 (9th Cir. 2010). As of this writing, the Supreme Court 



2010] U.S. CAMPAIGN FINANCE LAW 287 



B. Contribution Limits 

The Davis v. FEC decision, while presenting potential implications for certain 
tax funding programs, is at bottom a contribution limit case. It stands for the 
intuitively appealing proposition that the government's restrictions on 
contributions must be evenhanded among candidates for the same office. The 
Court entered new constitutional territory in 2006 when it analyzed a state 
government's power to limit the size of campaign contributions in Randall v. 
Sorrel 7. 18 

In Randall, the Court evaluated Vermont's expenditure and contribution limit 
laws. As noted before, mandatory expenditure limits fail under modern 
constitutional doctrine. Contribution limits, however, have generally passed 
constitutional scrutiny because a contribution can resemble a gift or gratuity to 
a candidate (or his party) that might be a bribe, extortion payment, or might at 
least appear corruptive. 19 

In earlier challenges to contribution limits, the Court had been unwilling to 
evaluate the level of the limit, leaving that task to the discretion of Congress or 
state legislatures. But in Randall, Justice Breyer's plurality opinion entered this 
uncharted territory and concluded that the Vermont scheme was 
unconstitutionally restrictive. 20 Breyer observed that the law was quite a bit more 
restrictive than similar laws found in any other jurisdiction. 21 His method for 
drawing that conclusion involved a number of steps and may not be readily 
applicable to other regulatory cases. 22 Moreover, a majority of the Court 
expressed readiness to abandon Buckley's contribution-expenditure dichotomy, 
but they were divided on whether that would mean treating contributions more 
generously or treating expenditures more restrictively. 23 Therefore, while Randall 
demonstrates that the Court will rule against contribution limits in extreme cases, 
it may not mean much more than that. 24 



has stayed the appellate court's decision pending writ review. See Lyle Denniston, Elections 
Subsidies Blocked, SCOTUSblog (June 8, 20 1 0, 1 0:26 AM), http://www.scotusblog.com/20 1 0/06/ 
election-subsidies-blocked/. 

18. 548 U.S. 230 (2006). 

19. Id. at 246-48. 

20. Mat 261-63. 

21. Id. at 250-51. 

22. See id. at 250-52. 

23. Justice Alito wrote separately in Randall, suggesting a future re-thinking of Buckley. Id. 
at 263-64. Justice Kennedy, concerned about the direction of the Court in campaign finance, 
concurred in the judgment only. Id. at 264-65. Justices Thomas and Scalia attacked the Buckley 
dichotomy outright. Id. at 266. Finally, Justice Stevens advocated overruling Buckley' s protection 
of expenditures. Id. at 274. 

24. As of this writing, two appellate decisions yet to reach the Court could further clarify the 
Court's contribution limit doctrine. See SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) 
(rejecting limits on committees that make only independent expenditures); RNC v. FEC, No. 08- 



288 INDIANA LAW REVIEW [Vol. 44:285 



Given the Court's recent decisions related to contribution and expenditure 
limits, it appears safe to conclude that expenditure limit requirements remain 
unconstitutional. It would be difficult to imagine an expenditure limit that would 
survive strict scrutiny after Randall. But where does this leave the Court's 
modest deference since Buckley toward legislative judgments regarding 
contribution limits? Will the Court extend the close examination of limits in 
Randall to more "typical" state laws? If a majority of the Court moved beyond 
the "typicality" aspects of Justice Breyer's test, would it find an "important 
interest" sustaining the federal $2400 per candidate per election individual 
contribution limit? 25 What would this "important interest" be? Would the Court 
be willing to revisit its precedent affirming these limits and demand a more 
specific showing that limits were calibrated to address real corruption? 26 Would 
the Court be willing to revise constitutional doctrine, subject these limits to strict 
scrutiny, and find them unconstitutional? 27 

More likely would be a challenge to the $5000 annual contribution limit to 
federal political committees. 28 Two characteristics make this limit more 
vulnerable. First, unlike other federal limits, it is not adjusted for inflation. 29 As 
a consequence, although the political action committee (PAC) limit was originally 
meant to be more generous to committees than to candidates, the indexed 
candidate limit will in fairly short time overtake the committee limit. 30 

Second, not only is the $5000 limit not indexed, but it was first set by 
Congress in 1940. 31 According to the Bureau of Labor Statistics, $5000 in 1940 
had the purchasing power of over $77,000 in 20 10. 32 This limit is not calibrated 
to any current threat or notion of corruption. Even if $5000 was not arbitrary in 



1953, 2010 WL 1 140721 (D.D.C. Mar. 26, 2010) (applying limits to party committees). 

25. See 2 U.S.C. § 441a(a)(l)(A) (2006); id. § 441a(c). 

26. Contra Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 387-88 (2000). 

27. See, e.g., Nixon, 161 F.3d. 519, 521-22 (8th Cir. 1998), rev 'd, 528 U.S. 377 (2000). 

28. Groups with federal and nonfederal accounts can raise unlimited sums into their soft 
money accounts, and an FEC attempt to thwart their spending through allocation requirements has 
been found unconstitutional by an appellate court. See Emily's List v. FEC, 581 F.3d 1,18 (D.C. 
Cir. 2009). 

29. Vermont's failure to adjust certain limits for inflation was one of the many factors 
catching Justice Breyer's attention in his opinion in Randall. See Randall v. Sorrell, 548 U.S. 230, 
238-40 (2006). 

30. This is especially true when, as recent appellate decisions observe, such committees are 
not closely aligned with members, as contrasted with political parties. See Emily 's List, 581 F.3d 
at 13. 

31. See Allison R. Hayward, Revisiting the Fable of Reform, 45 Harv. J. ON LEGIS. 42 1 , 443- 
47 (2008). Legislative history indicates that the $5000 contribution limit was meant as a "poison 
pill" to defeat the bill. Id. at 444. 

32. Overview of BLS Statistics on Inflation and Prices, BUREAU OF Labor Statistics, 
http://www.bls.gov/bls/inflation.htm (follow "CPI Inflation calculator" hyperlink, input "5000" and 
year "1940," and press "calculate") (last modified June 4, 2010). 



2010] U.S. CAMPAIGN FINANCE LAW 289 



1 940, it is impossible today to make that argument. 33 

As an aside, reexamining these contribution limits would be difficult 
politically. Even if the Court found the candidate and committee limits 
unacceptable, members of Congress would be in a position of advocating higher 
limits for themselves, for the PACs that in large measure give to incumbents, and 
for the PACs they control, colloquially known as "leadership PACs." 

Leadership PACs occupy a puzzling place in the law. The 1974 statute did 
not provide for them; instead, subsequent regulatory interpretations permitted 
them to develop. 34 Notwithstanding the fact that both the member's campaign 
committee and his leadership PAC are under his control, the two committees are 
not deemed legally affiliated and thus can raise money from the same donors. 35 
There would not seem to be any constitutional impediment preventing Congress 
from limiting a candidate or officeholder to one committee. Accordingly, 
Congress could respond by raising committee limits, but abolishing leadership 
PACs. 

Another limit that may be vulnerable to a constitutional challenge is the 
hybrid contribution-expenditure limit imposed on donors. Federal law has 
imposed an aggregate limit on contributions since the 1974 FECA amendments. 36 
That $25,000 limit was upheld in Buckley, and the Court noted there that it had 
"not been separately addressed at length by the parties." 37 The Court also 
reasoned that this limit prevented circumvention of the contribution limits, which 
might otherwise occur when donors give to PACs or parties likely to support their 
candidate. 38 

In the Bipartisan Campaign Reform Act of 2002 (BCRA), Congress raised 
the aggregate limit and indexed it for inflation. 39 Presently, the overall limit is 
$115,500, out of which up to $45,600 can be contributions to candidate 
committees. The remaining $69,900 can be contributions to any other 
committees, out of which no more than $45,600 may be given to committees that 
are not national party committees. 40 



33. The D.C. Circuit in Emily 's List recently found the FEC allocation requirement onerous 
precisely because of the low $5000 limit. Emily's List, 581 F.3d at 21. 

34. See Leadership PACs, 68 Fed. Reg. 67,013 (Dec. 1, 2003) (addressing leadership PAC 
rulemaking with summary of legal development); Marian Currinder, Money in the House 24- 
31 (2009) (discussing background of leadership PACs). 

35. This relationship was clarified and made explicit in 2003 rulemaking. See 68 Fed. Reg. 
67,013,67,017-18. 

36. Buckley v. Valeo, 424 U.S. 1, 19 (1976). 

37. Id. at 38. 

38. Id. The Court added, unhelpfully, "[t]he limited, additional restriction on associational 
freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual 
contribution limitation that we have found to be constitutionally valid." Id. 

39. See 2 U.S.C. § 441a(a)(3) (2006); 1 1 C.F.R. § 1 10.5 (2010). 

40. Fed. Election Comm'n, Contribution Limits for 2009- 1 0, at 1 , http://www.fec.gov/ 
info/contriblimits0910.pdf (last visited Oct. 7, 2010) (stating FEC limits for 2009-10); see also 2 
U.S.C. § 441a(a)(3) (base levels); id. § 441a(c) (indexing). 



290 INDIANA LAW REVIEW [Vol. 44:285 



This restriction is both a contribution limit, in that it limits "contributions," 
and an overall expenditure limit restricting the amount of federal "hard" money 
an individual can give. The anticircumvention rationale in Buckley does not 
make much sense, especially because the FEC can deem committees affiliated 
and thus address the circumvention that might follow from committee 
proliferation. 41 Also, contributions to committees earmarked to a candidate are 
deemed contributions to that candidate. 42 Donors who want to give more in 
politics may still contribute unlimited sums to non-committee political 
organizations (colloquially known as "527s" 43 ), social welfare organizations 
exempt under Section 501(c)(4) of the Internal Revenue Code, and charities. 44 
These vehicles are less direct, transparent, and accountable than political 
committees. It seems to be bad policy to drive political financial activity there. 

Moreover, it is hard to justify the governmental interest in capping the overall 
amount of money an individual donor may contribute without similarly restricting 
PACs or other entities, such as Native American tribes. In short, the restriction 
has always made little sense, but in an era where the Court seems more willing 
to take a close look at campaign restrictions, the biennial limit's days may be 
numbered. 

To summarize, the federal statute's present limits are not directly contradicted 
in any Court decisions. But it would not take much of a stretch to change that. 
The Court's attitude toward constitutional doctrine may mean that the PAC limit 
and the biennial individual limit would not withstand a challenge. 

II. Prohibitions 

The FECA's prohibitions include corporate and labor contribution and 
expenditure bans, 45 foreign national contribution and expenditure bans, 46 and 
similar bans on government contractors. 47 Citizens United held the corporate 
expenditure ban (and by implicit extension, the labor ban) unconstitutional. The 
Court specifically stated that this holding would not threaten the contribution 
prohibitions or the foreign national expenditure and contribution ban. 48 

Citizens United, and the FEC v. Wisconsin Right to Life decision that 
preceded it, also articulated a relatively clear content requirement for spending 
to be treated as an "expenditure" or an "electioneering communication." An 
"expenditure" must contain express advocacy of the election or defeat of a clearly 



41. 2U.S.C. §441a(a)(5). 

42. Id. § 441a(a)(8); 1 1 C.F.R. § 1 10.6 (2010). 

43. Lauren Daniel, Note and Comment, 527s in a Post-Swift Boat Era: The Current and 
Future Role of Issue Advocacy Groups in Presidential Elections, 5 Nw. J.L. & Soc. Pol' Y 1 49, 1 50 
(2010). 

44. Id. atl58n.72. 

45. 2U.S.C. §441b. 

46. Id. §441e. 

47. Id. §441c. 

48. Citizens United v. FEC, 130 S. Ct. 876, 91 1 (2010). 



2010] U.S. CAMPAIGN FINANCE LAW 291 



identified candidate, and an "electioneering communication" must be the 
"functional equivalent" of express advocacy. 49 

Although Citizens United held unconstitutional the ban on corporate 
expenditures and electioneering communications, these definitions remain 
important. A "coordinated" expenditure or electioneering communication 
remains subject to the same limits, prohibitions, and reporting requirements as 
contributions. 50 In short, a corporation or union that coordinates an expenditure 
of express advocacy or its functional equivalent with a candidate will violate 
federal law. 

Thus, the definition of "coordination" is extremely important, and it remains 
hotly debated. 51 The Court's recent precedents do not address coordination 
specifically, but one can predict that a coordination rule that represses corporate 
or labor expenditures will be scrutinized closely to determine whether Congress 
or the FEC has unduly burdened constitutionally protected speech. 

In other ways, the regulatory regime goes far beyond the statutory 
expenditure ban. Part 114 of Title 11 of the Code of Federal Regulations is 
devoted entirely to restrictions on corporate and labor activity, deriving its 
authority in part on the expenditure ban found unconstitutional in Citizens 
United. 52 These regulations, for instance, dictate to whom a corporation may 
communicate about politics within the corporation, or for a union, within its 
membership. After Citizens United, these restrictions are obsolete and will 
require considerable administrative reworking. 53 

A. Solicitations 
Less clear is the constitutional status of the restrictions which donor 



49. Id. at 889; FEC v. Wis. Right to Life, 551 U.S. 449, 456-57 (2007). 

50. See 2 U.S.C. § 44 1 a(a)(7)(B) (treating expenditures that are coordinated with a candidate 
as contributions to the candidate's campaign and thus subject to FECA's limits on such 
contributions); 11 C.F.R. § 109.21 (2010) (defining coordinated communication). 

51. See Shays v. FEC, 528 F.3d 914, 919-24 (D.C. Cir. 2008) (rejecting the FEC's 
coordination rule for the second time); Shays v. FEC, 414 F.3d 76, 112 (D.C. Cir. 2005) (rejecting 
the FEC's coordination rule for the first time); Coordinated Communications, 7 1 Fed. Reg. 33,190, 
33,193 (June 8, 2006) (discussing "coordinated" activities). 

52. See, e.g., 11 C.F.R. § 114.2 (2010) (prohibiting contributions, expenditures, and 
electioneering communications); id. § 114.3 (disbursing communications to restricted class in 
connection with a federal election); id. § 1 14.9 (using corporate or labor organization facilities.); 
id. § 114.14 (restricting the use of corporate and labor organization funds for electioneering 
communications). 

53. As of this writing, the FEC has received a petition for rulemaking along these lines from 
the James Madison Center for Free Speech and has published a Supplemental Notice of Proposed 
Rulemaking (NPRM) on Coordinated Communications to have commenters address the impact of 
Citizens United on that rulemaking. Myles Martin, Supplemental NPRM on Coordinated 
Communications, 36 FEC RECORD 7 (Mar. 2010), available at http://www.fec.gov/pdf/ 
record/20 10/marl0.pdf. 



292 INDIANA LAW REVIEW [Vol. 44:285 



corporations can solicit for contributions, either for a political committee or for 
a candidate. Presently, a corporation using its general treasury may solicit its 
executive and administrative personnel, shareholders, and the families of these 
individuals for PAC contributions. 54 This is in contrast to a nonconnected 
political committee, which may solicit any potential donor but must pay 
solicitation costs from PAC funds. In its 1982 FEC v. National Right to Work 
Committee decision, the Court upheld solicitation restrictions against a claim by 
the National Right to Work Committee that it could solicit a broad array of 
potential donors for its PAC by deeming the donors "members." 55 

Still, solicitation is a form of political speech. If corporate independent 
expenditures cannot be limited, it is hard to justify limiting corporate independent 
solicitations. Some corporate PACs might welcome contributions and 
participation from a wider array of employees, vendors, subcontractors, investors 
who are not shareholders, and other people who may share the views and 
concerns of the company but who presently cannot be solicited. 

Importantly, these regulations also exempt coordinated communications to 
the restricted class from being treated as contributions. 56 Because the Court in 
Citizens United reaffirmed the coordinated contribution ban, the restriction will 
likely carry forward. Thus, if a PAC were to win the argument that Citizens 
United protected its corporate-funded solicitation of any donor, it would not be 
able to coordinate those activities with a candidate. If the corporation solicited 
only its restricted class, than as under current regulations, it could coordinate with 
a candidate or a party committee. 

B. Facilitation 

Corporations and unions are also subject to restrictions on how they raise 
money for federal candidates and other federal political committees. Often, this 
type of activity takes the form of a group of executives seeking to bundle 
contributions from colleagues. The "facilitation" regulations governing 
workplace fundraising are detailed and complex. 57 In general, they prohibit 
executives from directing staff to assist them in fundraising, require 
reimbursement of any corporate expenses incurred in the fundraising process 
(even in advance in certain situations), and forbid coercing contributions from 
employees. If the facilitation regulations are followed, the executives may 
coordinate their fundraising with a candidate without any expenses being deemed 
corporate contributions. 

But after Citizens United, it is unclear whether these restrictions would be 
constitutional in the absence of coordination. "Facilitation" without coordination 
may seem unlikely and has not been a fundraising factor in the past. But this was 
because there was no different legal consequence between an impermissible 



54. 2U.S.C. §441b(b)(4). 

55. FEC v. Nat'l Right to Work Comm., 459 U.S. 197, 21 1 (1982). 

56. 1 1 C.F.R. § 1 14.3(a)(1) (2010). 

57. See id. §§ 114.2, 114.9. 



2010] U.S. CAMPAIGN FINANCE LAW 293 



contribution and expenditure. Both actions were prohibited. If expenditures are 
now protected and coordination is the touchstone for determining when spending 
can be regulated as a "contribution," independent facilitation of political activity 
appears beyond the authority of the FEC or Congress to regulate. 

C Using Money Collected for Non-Political Purposes 

In Citizens United, the Court endorsed the use of corporate general treasury 
funds for political speech. 58 Yet in the content of labor organizations, the Court 
held in Communications Workers of America v. Beck that in closed-shop 
jurisdictions (where unions can collect fees from nonunion workers), mandatory 
fees may not be used for purposes outside the core functions of labor collective 
bargaining. 59 Thus, unions may not use mandatory fees for politics; instead, 
money used for purposes other than collective bargaining should be raised 
separately. 

Yet in Citizens United, the Court's majority showed little interest in a parallel 
argument in the corporate context — that corporations could not use funds invested 
by shareholders for politics. 60 Admittedly, it is hard to think of a context in which 
an individual is compelled to invest in a firm in a manner analogous to the closed- 
shop dues context. Accordingly, the Citizens United decision may not necessarily 
call into question the Beck decision and related precedents. But the argument is 
not frivolous, either. 

Finally, before Citizens United, certain nonprofit corporations could make 
expenditures. To comply with the Court's decision in FEC v. Massachusetts 
Citizens for Life , 61 the FEC promulgated regulations setting forth the requirements 
for a "qualified nonprofit" to make expenditures. 62 These regulations are now 
obsolete because this right is now recognized for all corporations. 

D. Other Prohibited Sources 

1. Foreign Nationals. — President Obama, a critic of the Citizens United 
decision, raised the specter of foreign participation in United States elections in 
his 2010 State of the Union address. 63 As noted before, the Court's opinion 
declaims any effect on the laws prohibiting expenditures by foreign nationals. 64 
Yet the Court also declared that independent expenditures are not corrupting. 
What other reasons would justify the foreign national ban? 

Congress has more discretion to regulate foreign nationals in the authority it 
has over immigration, national security, and foreign affairs. However, in the First 



58. Citizens United v. FEC, 130 S. Ct. 876, 929 (2010). 

59. Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 762-63 (1988). 

60. Citizens United, 130 S. Ct. at 91 1. 

61. 479 U.S. 238 (1986). 

62. 11C.F.R. § 114.10. 

63. Barack Obama, President, United States of Am., State of the Union Address (Jan. 27, 
2010), available at http://www.c-span.org/executive/state-of-the-union.aspx (2010). 

64. Citizens United, 130 S. Ct. at 91 1. 



294 INDIANA LAW REVIEW [Vol. 44:285 



Amendment context, the Court has held that First Amendment protections apply 
equally to citizens and noncitizens — both are "people" entitled to constitutional 
protection. 65 As legal scholar David Cole observed (albeit before Citizens 
United), "[i]f protecting corporate speech is essential to preserving a robust public 
debate, so too is protecting noncitizens' speech." 66 Yet when a foreign individual 
wanted to volunteer for a political campaign, it took an FEC advisory opinion to 
confirm that it would be legal for him to do so. 67 

Especially outside the immigration context, if we sincerely embrace the 
notion that the solution to false or dangerous speech is more speech, not enforced 
silence, it is very difficult to justify an independent expenditure ban on 
individuals legally present in the United States as professionals, students, or 
visitors. 68 These people who happen to be foreign nationals also pay taxes, 
depend upon infrastructure, education, and social services and should have no 
less a role in the community's debate about paying for and providing public 
goods and services. 69 

However, does this tolerance necessarily extend to foreign corporations? 
Would the Court instead recognize that the federal government has greater 
discretion to regulate in this area, given the diplomatic, national security, and 
foreign affairs issues that accompany restrictions on foreign interests? Would it 
consider such restrictions analogous to other special regulatory regimes applied 
to foreign businesses? 70 The answer should be that it would recognize such 
discretion, provided the law bore some relationship to national security or 
diplomacy. Even here, if the Court saw that Congress was using fractional 
foreign ownership as a pretext to extend a speech ban to corporations, it might 
conclude that Congress had acted unconstitutionally. The mere fact that some 
foreign interest was involved might be insufficient to survive scrutiny, especially 
since the ban would silence Americans also involved in the enterprise. 

In the concern over the influence of aliens in American elections, we should 
be reflective enough to consider how other nations may view American 



65. David Cole, Enemy Aliens 211-13 (2003). 

66. Id. at 217. 

67. Fed. Election Comm'n, FEC Advisory Opinion No. 1987-25 (Sept. 17, 1987), 
http://hemdon3.sdrdc.com/ao/no/870025.html (last visited July 31, 2010). 

68. 

If there be time to expose through discussion the falsehood and fallacies, to avert the 
evil by the processes of education, the remedy to be applied is more speech, not 
enforced silence. Only an emergency can justify repression. Such must be the rule if 
authority is to be reconciled with freedom. 
Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). 

69. Cf. Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding unconstitutional a city's 
redistricting plan which excluded blacks from participating in municipal elections). 

70. See, e.g., Foreign Investment and National Security Act of 2007 (FINS A), Pub. L. No. 
110-49, 121 Stat. 246 (2007); U.S. Gov't Accountability Office, GAO-09-608, Sovereign 
Wealth Funds: Laws Limiting Foreign Investment Affect Certain U.S. Assets and 
Agencies Have Various Enforcement Processes (2009). 



2010] U.S. CAMPAIGN FINANCE LAW 295 



participation in their elections. Americans with dual citizenship are important 
voting blocs for a number of other nations' politicians. American political 
consultants have shaped campaigns globally. 71 A Carnegie Endowment op-ed 
described U.S. involvement in Ukraine elections: 

Did Americans meddle in the internal affairs of Ukraine? Yes. The 
American agents of influence would prefer different language to describe 
their activities — democratic assistance, democracy promotion, civil 
society support, etc. — but their work, however labeled, seeks to influence 
political change in Ukraine. The U.S. Agency for International 
Development, the National Endowment for Democracy and a few other 
foundations sponsored certain U.S. organizations, including Freedom 
House, the International Republican Institute, the National Democratic 
Institute, the Solidarity Center, the Eurasia Foundation, Internews and 
several others to provide small grants and technical assistance to 
Ukrainian civil society. The European Union, individual European 
countries and the Soros-funded International Renaissance Foundation did 
the same. 72 

Understandably, many Americans view U.S. -sponsored electoral activity 
favorably, yet remain suspicious about the motives and sincerity of foreign 
nationals who want to instruct Americans about their political leadership. 

Caution may be prudent when considering the involvement of foreign 
governments, state-sponsored corporations, unions, parties, and the like, in 
American politics. Even so, it made little sense even before Citizens United to 
abridge the activities of foreign individuals legally in the United States and 
subject to our laws. Given the Court's attitude toward closer scrutiny, a challenge 
to the scope of this law might be successful. 

2. Government Contractors and Congressionally Chartered Corporations. — 
Federal campaign finance statutes presently forbid government contractors and 
congressionally chartered corporations from making expenditures. 73 Those 
restrictions have not had much impact because these entities are often also 
ordinary corporations. Thus, the expenditure ban that has been applicable to 
corporations has also prevented them from making expenditures. It is unclear 
how the Court would apply its Citizens United reasoning to these contexts. Read 
broadly, the holding that independent expenditures are "not corrupt[ing]" 74 would 
suggest that these entities should also be able to make expenditures. 

As with the rights of foreign nationals, the answer in the contractor and 



7 1 . Fritz Plasser, American Campaign Techniques Worldwide, 5 Harv. Int'l J. Press/Pol. 
33, 54 (2000); Roman Olearchyk, U.S. Political Advisers Add Polish to Ukraine Election 
Candidates, FlN. TIMES, Jan. 28, 2010. 

72. Michael McFaul, 'Meddling ' In Ukraine; Democracy Is Not an American Plot, Wash. 
Post, Dec. 21, 2004, at A25. 

73. See 2 U.S.C. § 441b (2006); see also id. § 441c; 1 1 C.F.R. § 1 15.2 (2010) (describing 
federal contractor ban). 

74. See Citizens United v. FEC, 130 S. Ct. 876, 910 (2010). 



296 INDIANA LAW REVIEW [Vol. 44:285 



congressionally chartered corporations contexts may not be so simple. The Court 
rejected the expenditure ban in Citizens United in part because it was broad and 
undifferentiated. 75 The ban did not respond to any evident threat to politics from 
corporations as such. 76 Thus, part of the defect with that section of the statute was 
its lack of tailoring and the flawed notion that all corporations of whatever size 
and structure are equally dangerous to democracy. 77 

These may, however, be special cases. With government contractors and 
congressionally chartered corporations, as with foreign corporations, Congress 
may be permitted greater discretion to craft expenditure restrictions that respond 
to a genuine identifiable threat of corruption. Congress and executive branch 
agencies have latitude to set prerequisites for the companies that contract with the 
government. 78 Thus, Congress could identify a greater risk of corruption from 
companies that receive no-bid federal government contracts because the 
competitive bidding process is not able to buffer the potential for undue influence 
between the contractor and governmental actors. Alternatively, Congress might 
structure such a regulation as an anti-"pay to play" law by disqualifying 
corporations and unions that make expenditures from receiving no-bid contracts. 
Congressionally chartered corporations, for their part, are discrete entities created 
by Congress, and unlike regular corporations they are imbued with a "public" 
purpose. Congress has a distinctive ability to set their mission and power with 
this small set of entities. 79 

Similarly, post-Citizens United, state and local jurisdictions may remain able 
to restrict the political expenditures of certain kinds of businesses if, in that 
jurisdiction's experience, the field has posed special problems of corruption in 
politics. 80 At present, various jurisdictions have imposed additional restrictions 
on political activities by alcoholic beverage licensees, 81 gaming licensees, 82 



75. Id. at 911. 

76. Id 

77. See id. 

78. Federal procurement is governed by the fifty-three part Federal Acquisition Regulation. 
See 48 C.F.R. pts. 1-53 (2010). For example, the federal government can demand that federal 
contractors observe additional hiring and recruitment policies beyond that demanded of ordinary 
business. See About OFCCP, U.S. Dep'T OF LABOR, http://www.dol.gov/ofccp/aboutof.html (last 
visited Oct. 10, 2010) (summarizing the necessary requirements). 

79. An example of a congressionally chartered corporation would be Freddie Mac. See 
Federal Home Loan Mortgage Corporation Act of 1970, Pub. L. No. 91-351, § 301, 84 Stat. 450 
(prior to 2009 amendment). 

80. An interesting, if dated, description of political practices of certain "special sources" is 
in chapter 6 of Alexander Heard, The Costs of Democracy 142-68 (1960). 

81. See, e.g., Village of Downers Grove, III., Code § 3.22SEC (Conduct of 
Licences/Prohibited Campaign Contributions); Schiller Park Colonial Inn v. Berz, 349 N.E.2d 61 
(111. 1976). 

82. See, e.g., N.J. Stat. Ann. § 5:12-138 (West 2010), upheld in Soto v. New Jersey, 565 
A.2d 1088 (N.J. Super. App. Div. 1989); see also Iowa Code Ann. § 99F.6 (West, Westlaw 
through 2010 Reg. Sess.); Ind. Code § 4-33-10-2.1 (2010); Mich. Comp. Laws Ann. § 432.207b 



20 1 0] U.S. CAMPAIGN FINANCE LAW 297 



racetrack operations, 83 contractors, 84 and public utilities. 85 Again, however, the 
Court would probably look behind the bare assertion of corruption and find the 
restriction unconstitutional if it is presented with a pretext unsupported by history 
or experience. After Citizens United, strict scrutiny means exactly that. 

III. Reporting Requirements and Disclaimers 

The "transparency" provisions of federal election law emerged from Citizens 
United with a ringing endorsement. 86 Seemingly channeling Perry Belmont and 
the National Publicity Law movement of the early twentieth century, 87 the Court 
endorsed disclaimers and disclosure as an appropriate means to thwart corruption 
and inform voters of the interests behind candidates. 88 The handful of situations 
where the Court has found disclaimers and disclosure unlawful have remained 
restricted to interpersonal political exchange, as in Mclntyre v. Ohio Elections 
Commission* 9 and radical minor political movements, as in Brown v. Socialists 
Workers '74 Campaign Committee. 90 

However, both the disclosure requirements in Citizens United and the 
exceptions in these more specific cases involved disclosure and disclaimer 
requirements that were attached to discrete electoral activities. In Citizens 
United, the Court upheld the BCRA requirement that anyone making 
electioneering communication expenditures over $10,000 must file a statement 
listing the amount of the expenditure, the election to which the communication 
was directed, and the names of certain contributors. 91 In Mclntyre, the Court 
found unconstitutional the requirement that an individual put her name on anti- 



(West, Westlaw though 2010 Reg. Sess.); see generally Donna B. More et al., Access Denied: 
Casinos, Campaign Contributions and the Constitution, 2 GAMING L. REV. 425 (1998). 

83. See, e.g., Va. Code Ann. § 59.1-375 (LEXIS through 2010 Reg. Sess.). 

84. See Ind. Code § 4-30-3-19.5 (2010); Ky Rev. Stat. Ann. § 121.056 (West, Westlaw 
through 2010 leg.); Ohio Rev. Code Ann. § 3517.13(J) (West, Westlaw through 2010 File 54 of 
the 128th GA); S.C. Code Ann. § 8-13-1342 (Supp. 2009); W. Va. Code Ann. § 3-8-12(d) (West, 
Westlaw through 2d Extraordinary Sess.); Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995); Green 
Party of Conn. v. Garfield, 537 F. Supp. 2d 359 (D. Conn. 2008), aff'd in part and rev 'd in part, 
616 F.3d 189, 616 F. 3d 213 (2d Cir. 2010). 

85. The Public Utility Holding Act of 1935 prohibited public utilities from making 
contributions and expenditures in federal races but was repealed in 2006. See Public Utility 
Holding Act of 1935, ch. 687, 49 Stat. 803m, repealed by Public Utility Holding Company Act of 
2005, Pub. L. No. 109-58, § 1263, 1 19 Stat. 594; see also Ga. Code § 21-5-30(1) (2010). 

86. Citizens United v. FEC, 130 S. Ct. 876, 916 (2010). 

87. See, e.g., Perry Belmont, Return to Secret Party Funds (photo, reprint 1974) 
(1927). 

88. Citizens United, 130 S. Ct. at 913-15. 

89. 514 U.S. 334(1995). 

90. 459 U.S. 87(1982). 

9 1 . Citizens United, 1 30 S . Ct. at 9 1 4- 1 5 . 



298 INDIANA LAW REVIEW [Vol. 44:285 



school bond flyers. 92 In Brown, a record of official and unofficial harassment 
permitted the Socialist Workers Party committee to be exempt from campaign 
finance disclosure requirements. 93 

Ordinarily, these disclaimers and disclosure requirements are justified and 
constitutional. In the context of corporate and labor expenditures, however, it is 
less clear how the Court would view reporting requirements that go beyond 
disclosing what other entities directly give to support an expenditure, to 
encompass donors who give with no strings attached. In such cases, the 
connection between the donation and political activities is much more remote. 
Similarly, it is less clear how much more information Congress could require on 
a disclaimer. Because disclaimer and disclosure requirements do not ban speech, 
as the contribution ban did, the Court may give Congress relatively freer reign to 
craft requirements. As the Court stated in Citizens United, "[t]he First 
Amendment protects political speech; and disclosure permits citizens and 
shareholders to react to the speech of corporate entities in a proper way." 94 

At some point, however, disclaimer and disclosure requirements intrude on 
free association interests, such as those the Court found compelling in NAACP v. 
Alabama. 95 There, the State of Alabama insisted that the NAACP produce 
membership lists, which it argued could show whether the NAACP should be 
required to file state corporate paperwork as an out-of-state enterprise. 96 The 
Court protected these membership lists under the First Amendment because their 
production would burden members simply because they had chosen to associate 
with the NAACP. 97 Similarly, if Congress moves beyond disclosure that is 
connected to political activity, and requires unreasonable or unduly burdensome 
disclosure (e.g., of all donors or all dues-paying members) as an indirect means 
of chilling protected speech, the Court could revisit its deferential treatment of 
disclaimer and disclosure requirements. 

IV. Political Committee Status 

Limits, prohibitions, and reporting requirements all come together when a 
group becomes a political committee. The statute itself is quite strict. A group 
that takes $1000 in contributions or makes $1000 in expenditures for the purpose 
of influencing an election for federal office must register with the Federal 
Election Commission, follow the $5000 contribution limit, follow prohibitions 
on contributions from corporations, unions, and other prohibited sources, and file 
regular reports of its financing and disbursements. 98 If that were the law alone, 
then Citizens United would mean little. Once a corporation made $1000 in 



92. Mclntyre, 514 U.S. at 356-57. 

93. Brown, 459 U.S. at 101-02. 

94. Citizens United, 130 S. Ct. at 916. 

95. 357 U.S. 449(1958). 

96. Id. at 452-54. 

97. Id. at 461-63. 

98. See 2 U.S.C. § 431(4) (2006); id. §§ 432, 433. 



2010] U.S. CAMPAIGN FINANCE LAW 299 



expenditures, it would need to spend every dollar thereafter out of a PAC. 

But in Buckley, the Court interpreted the committee threshold to apply only 
if the group was itself under the control of a candidate or political party or had as 
its major purpose "the nomination or election of a candidate." 99 Subsequent 
judicial interpretation of the so-called "major purpose" test, and various FEC 
regulatory initiatives, has rendered a mixed bag. 100 Some situations are clear-cut. 
At one extreme, a "shell" corporation formed solely to make expenditures in 
elections would be required to follow the political committee rules, including the 
limits and prohibitions on contributions to it. 101 At another extreme, a 
multifaceted multimillion-dollar corporation that used general treasury funds to 
make $1500 in expenditures would not be required to follow these rules. 102 

But future challenges will arise as corporate spenders and FEC regulators 
tussle over the line in the middle. Does "major purpose" mean expenditures of 
over fifty percent of the corporation's total spending? In what time period? What 
if the group has numerous purposes, but making political expenditures is the 
largest of its expenses. 103 What role should statements about the group's 
"purpose" play in its formative documents, literature, and fundraising in this 
determination? 

Conclusion 

The statute governing federal campaign finance requires an overhaul in the 
wake of the Court's development of constitutional doctrine. The Court has not 
only endorsed political expression by incorporated groups and unions, but has 
also taken a close look at areas where Congress and state legislatures impose 
burdensome or unwarranted restrictions. The Court stands ready to offer robust 
protection for political speech and association by groups — unless the group is a 
political party or a candidate's campaign committee. 

That dichotomy troubles many observers. 104 Parties and candidate campaign 



99. Buckley v. Valeo, 424 U.S. 1, 79 (1976). 

100. See, e.g., Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007). 

101. See Buckley, 424 U.S. at 79; Political Committee Status, 72 Fed. Reg. 5595. 

102. See Buckley, 424 U.S. at 79; Political Committee Status, 72 Fed. Reg. 5595. 

103. As of this writing, another appellate court decision could potentially limit "major 
purpose" drastically. Unity08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010). The court held that a 
committee formed to ultimately support a ticket chosen in the future via Internet convention would 
not need to register and report until it had chosen a specific candidate to support. Id. at 869. In 
contrast, the FEC had advised the group that it would become a political committee once it spent 
$1000 to obtain ballot access. Id. at 863. The court read literally Buckley's rule that a committee 
would only be formed to support "a candidate." Id. at 867 (quoting Buckley, 424 U.S. at 79). Yet 
another case challenging "major purpose," Real Truth About Obama, Inc. v. FEC, was also working 
its way through the federal courts before the Supreme Court vacated the judgment and remanded 
the case back to the Fourth Circuit. 575 F.3d 342 (4th Cir. 2009), vacated, 130 S. Ct. 2371 (2010) 
(mem.) 

104. See, e.g., Defining the Future of Campaign Finance in an Age of Supreme Court 



300 INDIANA LAW REVIEW [Vol. 44:285 



committees are designed to participate in politics, yet they are relatively 
disadvantaged at present. To resolve this situation today, Congress should 
rework restrictions on parties rather than attempt to indirectly burden outside 
groups. 105 

Congress should embrace the opportunity to revise the campaign finance 
restrictions to make them clearer, simpler, and less burdensome. Perhaps 
members believe political regulation is shrewd politics or even good government. 
But in an era of increasing dissatisfaction with the performance of the federal 
government, one can wonder whether embracing the changing tide might be the 
shrewder alternative. That approach, of course, would have the additional benefit 
of being better aligned with the Constitution and its respect for and protection of 
political speech. 



Activism: Hearing Before the Comm. on House Admin., 1 1 1th Cong. 1 5-27 (2010) (statement of 
Robert D. Lenhard, Former Chairman, Fed. Election Comm'n). 
105. Id. 



Indiana Law Review 

Volume 44 2010 Number 1 



NOTE 



Sexting: A Response to Prosecuting Those 
Growing Up with a Growing Trend 



Jordan J. Szymialis* 



Introduction 

Hope liked a boy and sent him a photo showing her breasts. 1 The photo 
eventually made its way around Hope's entire school. 2 The school suspended 
Hope, and she returned to school to face a barrage of insults as students called her 
a "'whore' and [a] 'slut.'" 3 Three months later, Hope's mother found her 
daughter dead, all of thirteen years old, after "Hope [hung] herself in her 
bedroom." 4 

Like Hope's tragic story, the debate over how to respond to "sexting" has 
headlined news outlets over the past several years. 5 A minor creates a "sext" 
message by "tak[ing] a picture of him- or herself with a digital camera or cell 
phone camera, or ask[ing] someone else to take that picture." 6 In a high school 
class of one hundred students, perhaps as many as twenty of these students will 
have sent sexually explicit images to each other by cell phone. 7 Prosecutors 



* J.D.-M.B.A. Candidate, 201 1, Indiana University School of Law — Indianapolis; B.A., 
2007, Indiana University, Bloomington, Indiana. I would like to express immense gratitude to 
Professor Joel M. Schumm, Hattie Harman, and Danielle Tucker, as well as the other editors of the 
Indiana Law Review whose suggestions and edits made this Note possible. Finally, I want to thank 
my family, friends, and especially Cindy, for their enduring patience and feedback throughout the 
development of this Note. 

1 . Andrew Meacham, A Shattered Self-Image, St. PETERSBURG Times, Nov. 29, 2009, at 
1A, available at 2009 WLNR 24167487. 

2. Id. 

3. Id. 

4. Id. While not as tragic in their endings, many stories surrounding incidents of sexting 
follow similar fact patterns. See, e.g., Mathias H. Heck, Jr., Sexting and Charging Juveniles — 
Balancing the Law and Bad Choices, 43 PROSECUTOR 28, 28 (Mar. 2009). 

5. Robert D. Richards & Clay Calvert, When Sex and Cell Phones Collide: Inside the 
Prosecution of a Teen Sexting Case, 32 HASTINGS COMM. & ENT. L.J. 1,1-3 (2009). 

6. Miller v. Skumanick, 605 F. Supp. 2d 634, 647 (M.D. Pa. 2009), off 'd sub nom. Miller 
v. Mitchell, 598 F.3d 139 (3d Cir. 2010). 

7. See Nat'l Campaign to Prevent Teen & Unplanned Pregnancy, Sex and Tech: 
Results from a Survey of Teens and Young Adults 1 (2008), available at http://www. 



302 INDIANA LAW REVIEW [Vol. 44:301 



threaten legal action, 8 and students' peers ridicule teens 9 appearing in the images. 

The law has failed to adapt quickly enough to teens sending these images. 
In response to sexting, prosecutors have utilized laws originally intended for child 
predators, 10 such as child pornography statutes. 11 Many of these statutes define 
the prohibited acts using broad language. For example, Pennsylvania's child 
pornography statute, the statute under which teens could be prosecuted for 
sending sext messages, prohibits depictions of minors "engag[ed] in a prohibited 
sexual act." 12 Nudity is included in the definition of a "prohibited sexual act" if 
the depiction is sexually stimulating. 13 For parents and teens facing an aggressive 
prosecutor, this takes the phrase "in the eye of the beholder" to a whole new level. 
A conviction under a child pornography statute, "even in juvenile court," may 
require classification and registration as a sex offender for the juvenile. 14 This 
registration includes "community notification requirements." 15 In Oregon, a 
judge analogized a sexting conviction to The Scarlet Letter 's Hester Prynne and 
stated that the "sex offender label" could "brand[ ] [the letter] "'A' on [a teen's] 
forehead for the rest of [her] life." 16 

Part I of this Note details the history and rationale governing the juvenile 
justice system, as well as recent changes to the system. Part II looks at child 
pornography laws, the justifications behind them, and recent cases discussing 
how to address juveniles who create pornography. Part III details the recent 
phenomenon of sexting and surveys several state bills adopted or considered 
across the country. Finally, Part IV proposes changes to state laws and attempts 



thenationalcampaign.org/sextech/PDF/SexTech_Summary.pdf. But see Robert H. Wood, The 
Failure of Sexting Criminalization: A Plea for the Exercise of Prosecutorial Restraint, 16 MlCH. 
Telecomm. & Tech. L. Rev. 151,154 (2009) (arguing that the survey does not accurately portray 
the true scope of the problem); Carl Bialik, Which Is Epidemic — Sexting or Worrying About It? , 
Wall St. J., Apr. 8, 2009 (criticizing the survey's procedure in gathering its sample). 

8. Richards & Calvert, supra note 5, at 3-5. 

9. Kevin Turbert, Note, Faceless Bullies: Legislative and Judicial Responses to 
Cyberbullying, 33 SETON Hall LEGIS. J. 651, 656 n.24 (2009). 

10. See Shannon P. Duffy, 'Sexting' Case to Take Center Stage at 3rd Circuit, LEGAL 
Intelligencer, Jan. 14, 2010, at 1, available at 2010 WLNR 752642 (discussing Miller v. 
Skumanick and the prosecutor's appeal of the district court's injunction to prevent opportunity to 
bring prosecution under child pornography laws). 

11. See Skumanick, 605 F. Supp. 2d at 637-38 (observing that conviction under child 
pornography law could "give even juveniles a permanent record"). 

12. 18 Pa. Cons. Stat. Ann. § 6312(b) (West, Westlaw through 2010 legislation). 

13. Id § 6312(g). 

1 4. Stephen F. Smith, Jail for Juvenile Child Pornographers? : A Reply to Professor Leary, 
15 VA. J. SOC. POL'Y & L. 505, 535-36 (2008) (citing Mary Graw Leary, Self-Produced Child 
Pornography: The Appropriate Societal Response to Juvenile Self-Sexual Exploitation, 1 5 Va. J. 
SOC. POL' Y & L. 1 , 46-47 (2007)). 

15. Id 

1 6. Lori Tobias, Teenager Gets Jail in 'Sexting ' Case, Oregonian, Oct. 1 7, 2009, available 
at 2009 WLNR 20589470. 



2010] SEXTING 303 



to merge the strengths of adopted or proposed state bills and rationales underlying 
the juvenile court system and child pornography laws. 

I. Explanation of the Juvenile Court System 

Prior to 1899, states tried children in adult courts, and a child's lone defense 
was to rely on the "common law infancy defense ... as the only protection" from 
adult sentences. 17 In 1899, Illinois passed a statute creating a court for juveniles, 
which every other state soon imitated. 18 States derived their power to regulate 
juvenile offenses from the doctrine of parens patriae, 19 which asserts that states 
provide "protection to those unable to care for themselves." 20 The doctrine 
seemingly gave states the right to withhold procedural due process safeguards to 
protect children's rights because the states did not view children as needing those 
safeguards. 21 States could also interfere with parents' "fundamental" but limited 
rights "to raise their children" 22 if the parents failed and the child was deemed 
"delinquent." 23 

Proponents for a separate system for juveniles based their arguments on 
rehabilitating juveniles and "sav[ing] [them] from a downward career." 24 Thus, 
theoretically, "[t]he avowed priority of our juvenile justice system . . . has, 
historically, been rehabilitation rather than retribution." 25 An emphasis on 
rehabilitation has also led the juvenile court system to be primarily private in 
nature. 26 Contrary to the rationale of public adult hearings, the prevailing view 
in juvenile law has been that children need protection from "any public 



17. Courtney P. Fain, What's in a Name? The Worrisome Interchange of Juvenile 
"Adjudications " with Criminal "Convictions, " 49 B.C. L. REV. 495, 498 (2008) (citing BARRY C. 
Feld, Bad Kids: Race and the Transformation of the Juvenile Court 47 (1999)). 

18. See In re Gault, 387 U.S. 1, 14-15(1967). 

19. Leary, supra note 14, at 26 (arguing that the state's police power and the doctrine support 
intervention and defining the "doctrine as the basis for government intervention in the lives of 
children who were exposed to danger because of the failure of those responsible for the children's 
safety to protect them") (citing Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. 
United States, 136 U.S. 1, 57 (1890)). 

20. Black's Law Dictionary 1 144 (8th ed. 2004). 

21. In re Gault, 387 U.S. at 17. 

22. Leary, supra note 14, at 26-27 (citing Troxel v. Granville, 530 U.S. 57, 87 (2000) 
(Stevens, J., dissenting)). 

23. In re Gault, 3S7 U.S. at 17. 

24. Id. at 15 (quoting Julian W. Mack, The Juvenile Court, 23 HARV. L. Rev. 104, 1 19-20 
(1909)). 

25. United States v. Juvenile Male, 581 F.3d 977, 978 (9th Cir. 2009), amended and 
superseded by 590 F.3d 924 (9th Cir. 2010), and certifying questions to 130 S. Ct. 2518 (2010). 

26. Fain, supra note 1 7, at 500 (citing David S. Tanenhaus, The Evolution of Juvenile Courts 
in the Early Twentieth Century: